You can hear it in Rick Scott’s answers, as the onetime champion of Florida's Definition of Marriage Amendment retreats into squishy equivocation.
The governor now mumbles that while he “supports traditional marriage, consistent with the amendment approved by Florida voters in 2008,” he also “does not believe that anyone should be discriminated against for any reason.”
As a policy statement, Scott was uttering contradictory gibberish, but as a gubernatorial candidate, he gave perfect voice to a new political reality: There’s no going back to 2008.
The courts, with extraordinary rapidity, have been tossing state gay marriage bans in Florida and across the nation. Over the last two months, circuit court judges in Monroe and Miami-Dade County have ruled in favor of gay couples seeking the right to marry, and a Palm Beach circuit judge — in an estate case brought by the surviving spouse of a gay couple who had been legally married in Delaware — similarly found the ban unconstitutional.
On Aug. 4, Broward Circuit Judge Dale Cohen, ruling in a divorce case involving a gay couple who had been legally married in Vermont, declared, “The State of Florida cannot ignore the status and dignity afforded to opposite-sex couples, who were married out-of-state, and not extend those same rights, dignities and benefits to same-sex couples similarly.”
Then, on Aug. 24, U.S. District Judge Robert Hinkle in Tallahassee, ruling in favor of gay couples seeking to marry, found that Florida’s constitutional ban against same-sex marriage violated the equal protection and due process clauses of the 14th Amendment. “Based on these decisions, gays and lesbians, like all other adults, may choose a life partner and dignify the relationship through marriage,” Hinkle wrote. “To paraphrase a civil-rights leader from the age when interracial marriage was first struck down, the arc of history is long, but it bends toward justice.”
To Attorney General Pam Bondi, losing one gay marriage case after another, the arc of history is bending toward political ignominy. She has begun to sound almost apologetic as she appeals gay marriage losses, explaining that her personal beliefs can’t be allowed to intrude on her professional obligation to defend Florida’s Constitution. “You can’t be attorney general and say, ‘Oh, I feel this way today, I feel this way today.’ You’re sworn to uphold the law of the state of Florida, no matter what it is,” she told the Bradenton Herald last week.
Bondi’s office appealed all of those decisions, save two. She allowed Thursday’s deadline in the Broward ruling to pass without filing an appeal, leaving county officials in a puzzle about the legality of Florida’s gay marriage ban in Broward County. On Friday, her office asked Cohen to order a stay on his ruling until higher courts finally settle the issue, but it was unclear whether the judge was under any legal obligation to postpone the matter. (A final (or not) hearing in the case is set for Wednesday afternoon.) Bondi also declined to appeal the ruling in the Palm Beach case. The attorney general’s failure to appeal Judge Cohen’s decision has raised the peculiar possibility that Florida’s first legal gay marriages might come out of a ruling in a divorce case.
“I’m researching it as quickly as I can. We’ve been researching it for months,” Broward County Clerk Howard Forman told the Miami Herald’s Steve Rothaus last week. “Florida’s changing a lot, and we’re vetting the issue as hard as we can.”
The changing, of course, goes well beyond Florida. Nineteen states and the District of Columbia have recognized same-sex marriage. Meanwhile, in states where state law or constitutional amendments forbid same-sex marriage, federal judges have been striking them down willy-nilly. Bans have been declared unconstitutional in Utah, Oklahoma, Virginia, Texas, West Virginia, Tennessee, Illinois, Ohio, Michigan, Idaho, Oregon, Pennsylvania, Wisconsin, Indiana, Kentucky, Colorado and, of course, Florida. Only a single federal judge in Louisiana has found grounds to uphold a same-sex marriage ban.
Three federal appellate courts, so far, have agreed that the bans are unconstitutional. The latest decision came Thursday out of the Seventh U.S. Circuit Court of Appeals in Chicago. The 40-page opinion was written by the storied Judge Richard Posner, the conservative intellectual appointed to the court in 1981 by Ronald Reagan. “When there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in society, doing so denies equal protection of the laws,” Posner wrote, as the three-judge panel declared bans in Wisconsin and Indiana unconstitutional.
Posner wrote that “unsupported conjecture that same-sex marriage will harm heterosexual marriage or children” was “totally implausible.” Florida officials, albeit in a federal circuit that has not yet ruled on the issue, have been advancing the same totally implausible arguments.
Posner also heaped scorn on Indiana’s convoluted argument — contrived to circumvent constitutional problems — that the same-sex marriage ban was actually designed to encourage opposite-sex couples who accidentally conceive to settle down, get married and create a stable family relationship for their children. “In other words,” Posner wrote, “Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents — model citizens, really — so have no need for marriage,” Posner wrote. “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry,” he wrote. “Go figure.”
So far, all of these decisions to allow same-sex marriage have been temporarily stayed until the U.S. Supreme Court finally decides the constitutional validity of same-sex marriage bans. Then there’s that gay divorce ruling in Broward County, which Bondi’s office neglected to challenge. That could allow the most gay-friendly county in Florida, probably the South, to create history in the next week or so. Liberal Broward could add to the quandary facing judges and state politicians once inclined to support same-sex marriage prohibitions.
It’s one thing to ban future gay marriages in the abstract. But it would be something quite different to invalidate existing legal unions, to rip apart actual couples, to take away the rights of real citizens. If nothing else, that would create the kind of outrage and turmoil that could awaken Democrats from their usual non-presidential-year-election comatose state.
There’s a reason that politicians who once championed the Florida Definition of Marriage Amendment are talking gibberish lately. They fear the new political reality.
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