Editorial: Ruling was clear: Marriage equality for Florida -- Tampa Bay Times

Editorial: Ruling was clear: Marriage equality for Florida
Tuesday, December 23, 2014 5:23pm
Tampa Bay Times

Last week, the U.S. Supreme Court rejected Attorney General Pam Bondi’s request to extend past Jan. 5 the stay a federal court judge had placed on a ruling striking down Florida’s same-sex marriage ban.
Associated PressLast week, the U.S. Supreme Court rejected Attorney General Pam Bondi’s request to extend past Jan. 5 the stay a federal court judge had placed on a ruling striking down Florida’s same-sex marriage ban.
In an ideal world, when a federal judge declares that a state measure violates the U.S. Constitution, Florida officials wouldn't need a road map to do the right thing. But four months after a federal judge struck down Florida's ban on same-sex marriages, apparently more guidance is needed. The cleanest solution is likely for U.S. District Judge Robert Hinkle to confirm what he probably feels he already said in the eloquent 33-page ruling he penned in August: Florida's limit on whom someone can marry is unconstitutional and any same-sex couple seeking to exercise the right to marry should not be denied — no matter which Florida county they reside in.

Last week, all eyes turned to Florida's elected court clerks to begin preparations for granting same-sex couples marriage licenses after the U.S. Supreme Court rejected Attorney General Pam Bondi's request to extend past Jan. 5 the stay Hinkle had placed on his ruling. But even as headlines proclaimed gay marriage was coming to Florida, behind the scenes there had been reservations for months in the clerks' ranks, fueled by the risk-averse warning from the Greenberg Traurig law firm, the clerks' association counsel, that any likely court ruling may not be binding on any clerk other than those named in a lawsuit.

Then a follow-up letter from the law firm last week warned that if clerks — other than the Washington County clerk who was named in the case — issued wedding licenses to same-sex couples they risked criminal prosecution under Florida law that still bans such unions. On Tuesday, Lora Bell, the newly elected Washington clerk, asked the judge to clarify exactly who is bound by his order.

The irony, of course, is that the Washington County clerk wasn't the only defendant in the case; so was the state of Florida. And in declaring the 2008 state constitutional amendment banning gay marriages unconstitutional under the U.S. Constitution, Hinkle never even appeared to entertain the idea his ruling would be interpreted with such a pinched view. Ideally, more state attorneys would follow the lead of Palm Beach State Attorney Dave Aronberg, a former state senator, who has announced he won't prosecute any clerk who issues a marriage license to a same-sex couple. This has never been a question of whether court clerks are performing their ministerial duties properly, but whether the state's limits on those duties violate fundamental rights. Hinkle was clear that they do.

Of course there remains a risk that Hinkle will be overturned. Progress on civil rights is not always linear. But it's worth noting that while the 11th U.S. Circuit Court of Appeals and the U.S. Supreme Court have yet to hear an appeal on the substance of Hinkle's ruling, both have now denied Bondi's request that they extend Hinkle's stay past Jan. 5 — paving the way for gay marriage to begin in Florida on Jan. 6.

And the mere momentum in Florida and across the nation shows the clear path forward. By one count, same-sex marriage advocates have lost just four of 60 cases since the U.S. Supreme Court invalidated part of the federal Defense of Marriage Act last year. Florida's elected officials should be more interested in upholding Floridians' constitutional rights than complying with a state law rooted in bigotry.

Editorial: Ruling was clear: Marriage equality for Florida 12/23/14 [Last modified: Tuesday, December 23, 2014 5:53pm]