ACLU asks judge to end Florida's gay marriage ban

TALLAHASSEE — Wasting little time after the U.S. Supreme Court declined Monday to take up a gay marriage case, the ACLU of Florida asked a federal judge Tuesday to end Florida's ban on same-sex marriage.

The five-page motion asks U.S. District Judge Robert L. Hinkle of Tallahassee to lift the stay he put in place Aug. 21 after ruling Florida's gay marriage ban was unconstitutional.

"In light of yesterday's path-breaking development, (we) respectfully submit that the court should lift the stay immediately," it stated. If Hinkle grants the motion, gay marriage would become legal in Florida.

Although Gov. Rick Scott personally opposes gay marriage, he has left the matter to Attorney General Pam Bondi's office, and continued to do so on Tuesday.

"The attorney general is defending Florida's Constitution, which is her duty," said Scott in an email sent by his spokesman, John Tupps. "This is a matter that will be decided by the courts. Whatever the eventual outcome is from the courts, Florida will of course abide with it."

That reaction stood in contrast to that of another Republican governor who has opposed gay marriage. Upon hearing the Supreme Court's decision on Monday, Wisconsin Gov. Scott Walker, who like Scott is locked in a battle for re-election, declared that his state's ban on gay marriage was "over."

"I think it's resolved," he told reporters.

Scott should have followed Walker's example, said Howard Simon, executive director of the ACLU of Florida.

"The governor could end this today if he wanted to," Simon said. "Don't put all this on Bondi. It's time the governor recognizes the message that the U.S. Supreme Court has sent. It's over. If Scott Walker can make that decision, so can Rick Scott."

Bondi has defended Florida's ban — placed in the Constitution by voters — with gusto. Part of her argument was that the courts should decide the issue, and that once the Supreme Court resolved the issue, she wouldn't fight it.

But when asked about the ACLU motion, her spokeswoman, Jenn Meale, replied in an email: "We do not consent to the resolution sought in the motion."

The state has 17 days to respond to the ACLU filing, meaning it could be resolved close to Election Day.

During a televised debate on Monday, after the Supreme Court had declined to take up several gay marriage cases, Bondi said the high court still could resolve the matter.

"There are a lot of other cases in the pipeline," she said.

Bondi is not alone. South Carolina Attorney General Alan Wilson, who attended Bondi's engagement celebration two years ago in the Cayman Islands, has said he will fight to uphold that state's ban on gay marriage.

But Bondi is clearly in the minority. The the 9th U.S. Circuit Court of Appeals on Tuesday ruled that bans on same-sex marriage in Nevada and Idaho were unconstitutional. That means that the five states in the 9th Circuit that don't allow same sex marriage will find it harder to legally justify their bans.

According to the Williams Institute, a national think tank at UCLA's law school, 16 more states will be recognizing same-sex marriage. Once that happens, the institute estimates that seven out of 10 same-sex couples in the United States will live in a state where they can marry.

Contact Michael Van Sickler at (850) 224-7263. Follow @mikevansickler.