Florida gay-marriage proponents will ask a federal judge Tuesday to lift his own stay and allow same-sex unions in the Sunshine State, following a Supreme Court announcement Monday that cleared the way for immediate expansion of marriage rights in as many as 11 states.
“It’s about time to suck it up and recognize the historical inevitability of equality,” ACLU of Florida Executive Director Howard Simon told the Miami Herald on Monday in a statement aimed directly at Florida Attorney General Pam Bondi, whose office has unsuccessfully defended the state’s gay marriage ban in at least four state and federal court cases.
“My office … will be reviewing that, see what happens next, there are a lot of other cases in the pipeline,” Bondi said Monday afternoon during a St. Petersburg election debate with Democratic challenger George Sheldon. “What I’ve always said is that the court must decide this — we need finality from the judiciary. I think we can all agree, we’re members of the executive branch, we’re not the Supreme Court.”
Asked about dropping appeals in Florida, Bondi responded: “There are other cases in other states. The sixth circuit is still out there pending so we’re going to see what they do in the sixth circuit, we’re going to be looking at those other cases, we’re going to be reviewing everything in Florida to see what to do next. And again, it just came out less than three hours ago, but this is a tremendous win for the plaintiffs in this case.”
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On Monday, the U.S. Supreme Court announced it would not hear appeals from five states seeking to prevent gay marriage — Wisconsin, Indiana, Utah, Oklahoma and Virginia. Federal appeals courts for those states had thrown out gay-marriage bans. Six other states that ban gay marriage — Kansas, Colorado, West Virginia, Wyoming, North Carolina and South Carolina — also fall under the jurisdiction of the appellate courts involved Monday.
Florida’s ACLU said it will ask U.S. District Judge Robert L. Hinkle of Tallahassee to lift a stay he put in place Aug. 21, when he declared Florida’s gay-marriage ban unconstitutional.
At the time Hinkle issued his ruling, he wrote: “The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down. … Those who enter opposite-sex marriages are harmed not at all when others, including these plaintiffs, are given the liberty to choose their own life partners and are shown the respect that comes with formal marriage.”
Bondi’s office soon appealed Hinkle’s ruling to the 11th Circuit Court of Appeals in Atlanta, where it awaits a hearing.
On Monday, ACLU attorney Daniel Tilley asked Bondi’s office not to oppose his request that Hinkle lift the stay. “We anticipate they will oppose lifting,” said Stephen F. Rosenthal, an appellate attorney with Podhurst Orseck in Miami, who is working with the ACLU on the case.
Regardless of Bondi’s decision, ACLU lawyers on Tuesday will ask Hinkle to lift his stay. The state has 17 days to reply, unless Hinkle orders Bondi to reply sooner. In any event, this could force the case to play out just days before the Nov. 4 election.
According to Simon, Hinkle said in August he would stay his ruling until after “the U.S. Supreme Court resolves the pending applications, at that time, from Utah, Oklahoma and Virginia.”
National gay marriage advocates and opponents quickly opined on the high court’s announcement.
“Today’s decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country. The Court’s letting stand these victories means that gay couples will soon share in the freedom to marry in 30 states, representing 60 percent of the American people,” said Evan Wolfson, president of Freedom to Marry. “But we are one country, with one Constitution, and the Court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places. As waves of freedom to marry litigation continue to surge, we will continue to press the urgency and make the case that America — all of America — is ready for the freedom to marry, and the Supreme Court should finish the job.”
Tony Perkins, speaking for the conservative Family Research Council, criticized the Supreme Court’s decision not to take up the appeals cases.
“Unfortunately, by failing to take up these marriage cases, the High Court will allow rogue lower court judges who have ignored history and true legal precedent to silence the elected representatives of the people and the voice of the people themselves by overturning state provisions on marriage,” Perkins said. “Even more alarming, lower court judges are undermining our form of government and the rights and freedoms of citizens to govern themselves. This judicially led effort to force same sex ‘marriage’ on people will have negative consequences for our Republic, not only as it relates to natural marriage but also undermining the rule of and respect for law.”
Within hours of the Supreme Court’s action Monday, the political situation changed rapidly in the affected states. Among the developments:
▪ Wisconsin Gov. Scott Walker, a Republican, said the fight against same-sex marriage “is over” in Wisconsin. “With the Supreme Court’s announcement today, it is clear that the position of the court of appeals at the federal level is the law of the land and we’re going to go forward enacting it.” By Monday afternoon, several couples throughout the state applied for marriage licenses. Wisconsin has a five-day waiting period to receive a marriage license after an application is made.
▪ Gay couples started marrying in Virginia. Thirty-year-old Lindsey Oliver and 42-year-old Nicole Pries received the first same-sex marriage license issued from the Richmond Circuit Court Clerk’s office shortly after 1 p.m. Upon leaving the courthouse, they were married by gay-rights advocate the Rev. Robin Gorsline. The couple said Monday also was the anniversary of a commitment ceremony they held on a North Carolina beach three years ago.
▪ In North Carolina, lawyers for same-sex couples said they planned to ask a judge to overturn the state’s gay marriage ban.
▪ South Carolina Attorney General Alan Wilson said he will continue to fight to uphold the state constitution’s ban on gay marriage. He pointed out that a judge has not ruled on a lawsuit by a gay couple legally married in Washington, D.C., seeking to overturn the South Carolina gay marriage ban.
▪ In Oklahoma, the Tulsa County Court Clerk’s Office issued a marriage license to Mary Bishop and Sharon Baldwin, the couple who successfully challenged the state’s ban on gay marriage. The clerk’s office issued the license Monday afternoon. The two were plaintiffs in a challenge to Oklahoma’s ban on gay marriage, which was overturned by a federal appeals court earlier this year. Bishop and Baldwin say they plan to have a wedding ceremony later Monday in Tulsa.
▪ In Utah, a federal appeals court lifted its stay in its gay-marriage case that the Supreme Court declined to hear. After the appeals order was lifted Monday, Salt Lake County Clerk Sherrie Swensen said the district attorney’s office gave her approval to issue licenses to gay couples.
“Today is a momentous day in American history, one of the surest signs yet that the Supreme Court now recognizes what many of us have known to be true for years: denying same-sex couples the ability to marry is discrimination before the law, pure and simple,” said U.S. Rep. Debbie Wasserman Shultz, D-Weston, who is also chairwoman of the Democratic National Committee. “In Florida, the groundswell had already begun with South Florida courts taking the lead in striking down the state’s ban. Love is love, and it is now only a matter of when, not if, same-sex marriage bans are struck down here at home and across the rest of the United States.”
U.S. Rep. Ileana Ros-Lehtinen, R-Miami, one of the strongest pro-LGBT voices in the GOP, said: “Today’s decision by the Supreme Court allowing various state rulings permitting same-sex marriage to stand is a welcome one. Everyone, regardless of sexual orientation or gender identity, should be able to marry the person of their choosing and I look forward to the day when every American will enjoy that right.”
John Stemberger, president of the conservative Florida Family Policy Council, said Monday he believes the Supreme Court announcement “has no legal effect in Florida and is only legally binding in the five states where the appeal was brought.”
“Florida’s opponents of natural marriage are trying to argue that the attorney general and Florida courts should ignore the legitimate process and procedure and become social change agents,” said Stemberger, an attorney. “Unless and until a federal appeals court over Florida issues an adverse ruling, then Florida’s current valid marriage laws should continue to be upheld by the attorney general and Florida judges alike. Further, no same-sex marriage licenses should be issued, and any decision otherwise by a Florida court or a clerk of court, would be irresponsible and illegitimate.”
Florida gay-marriage proponents believe Bondi and Gov. Rick Scott, both Republicans up for reelection in November, are now on the political hot seat.
Bondi now has several choices, according to the ACLU’s Simon:
“She can fight the lifting of the stay by Hinkle. If he does lift the stay, she can run to Atlanta to ask the 11th Circuit to reinstate the stay. Or three, she can suck it up and be an adult and say to her base and supporters, ‘We fought the good fight. I performed my duty to defend Florida’s law, but the nation’s highest court has told me that pursuing this is fruitless,” Simon said. “Of three alternatives, the one she should do is the third.”
Bondi has repeatedly said Florida should stop fighting the gay-marriage battle at the state level and wait until the U.S. Supreme Court settles the issue nationally, once and for all.
Miami Beach attorney Elizabeth Schwartz, who is helping represent six same-sex couples in the Miami-Dade right-to-marry case, said it’s time for Bondi to change her legal strategy.
“Attorney General Bondi needs to come up with a new argument,” Schwartz said after Monday’s announcement. “She wanted to wait for the Supreme Court to resolve this issue, but, alas, if she wins this election, she is going to have to focus on defending this indefensible ban — or doing the right thing and not allowing discrimination to continue to be permitted in the state of Florida. She can’t dodge the issue anymore by waiting for the Supreme Court to make a finding.”
The Tampa Bay Times and the Associated Press contributed to this report.