The ACLU of Florida on Tuesday filed papers in federal court listing reasons why U.S. District Judge Robert L. Hinkle should reject a legal request by Florida Attorney General Pam Bondi, lift his stay and allow same-sex couples to immediately wed in the Sunshine State.
“In non-legal terms, this is basically us going item-by-item and disputing all of the reasons the state gave in their motion for why the stay should remain in place,” said Baylor Johnson, communications director for the ACLU of Florida in Miami.
Ultimately, according to the ACLU, the state of Florida suffers no harm if the stay is lifted and same-sex couples suffer “irreparable harm.”
“Every day that couples have to wait to marry or have their marriages recognized profoundly affects Plaintiffs and other same-sex couples across the State. Plaintiffs and other same-sex couples are subjected to irreparable harm every day they are forced to live without the security that marriage provides. As they wait, children will be born, partners and spouses will get sick, and some will die. Each day that passes, some people will pass away without ever having been able to marry the person they love or to have their marriage recognized in their home state, depriving their surviving spouse of important protections and dignity, as Plaintiff Arlene Goldberg continues to experience.”
Partners for 47 years, Goldberg and Carol Goldwasser moved from the Bronx to Florida in 1989 and married in New York in October 2011. Goldwasser died March 13. Her death certificate identified Goldwasser as a single woman and Hinkle ordered it be amended to “married.”
It’s unclear whether Social Security will immediately accept Goldwasser’s amended death certificate and change Goldberg’s monthly payment, which is $700 less than Goldwasser’s.
“Moreover, some of the protections marriage provides—such as the right to receive Social Security benefits as a surviving spouse — hinge directly on the length of the marriage,” reads the ACLU filing. “Therefore, by preventing couples who wish to marry now from doing so, a continued stay would have irreparable consequences for many couples who will be denied benefits or receive significantly diminished protections as a direct result of that delay.”
The ACLU filed its response after Bondi on Oct. 24 asked Hinkle not to lift his stay.
From the ACLU filing on Wednesday:
“Plaintiffs respectfully submit that the four factors strongly support lifting the stay and request that the Court do so in these consolidated cases.
“A four-part test governs stays pending appeal: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’”
If Hinkle lifts the stay, it is likely he would give Bondi another week to file an appeal to the U.S. Circuit Court of Appeals in Atlanta before allowing couples to marry, according to Howard Simon, the ACLU of Florida’s executive director.
On Aug. 21, Hinkle ruled that Florida’s same-sex marriage ban is unconstitutional, saying he would stay his ruling until after “the U.S. Supreme Court resolves the pending applications, at that time, from Utah, Oklahoma and Virginia,” according to Simon.
Bondi and Florida Gov. Rick Scott, who both oppose lifting the gay ban in Florida, appealed the case to federal court in Atlanta, which has jurisdiction over Alabama, Florida and Georgia.
On Friday, Bondi asked that the stay remain in effect until after the case is heard in Atlanta.
“This Court has already entered a limited stay after recognizing the ‘substantial public interest in stable marriage laws,’ and it should continue the stay until the federal appeals court can review the decision,” Bondi wrote to Hinkle. “On balance, it is in the public’s best interest to wait for an appellate decision before implementing an order of this significance.”
The U.S. Supreme Court on Oct. 6 settled the gay marriage issue in Utah, Oklahoma and Virginia, along with Wisconsin and Indiana, when it announced justices would not hear appeals in federal court decisions allowing same-sex marriages in those states. A day later, the ACLU of Florida asked Hinkle to lift his stay and immediately allow gay marriage in Florida.
“In light of yesterday’s pathbreaking development, Plaintiffs respectfully submit that the Court should lift the stay immediately,” ACLU lawyers wrote to Hinkle on Oct. 7.