Now that the U.S. Supreme Court has green-lighted gay marriage in 30 states and the District of Columbia, it’s time for Florida Attorney General Pam Bondi to throw in the towel. There is no good reason to deny equality of marriage for all the people of the Sunshine State, and no sensible reason for Ms. Bondi — and Gov. Rick Scott —to support the ban.
By leaving intact five favorable marriage rulings in three separate federal appellate courts, the court sent the strongest signal possible that the indefensible gay marriage ban is all but dead. Ms. Bondi surely knows that, and no amount of political grandstanding to appease conservatives prior to the upcoming election can make it otherwise.
The court’s action has been a long time coming for those who believe in marriage equality. Ever since the nation’s highest tribunal declared laws against racial intermarriage unconstitutional almost 50 years ago (Loving v. Virginia, 1967), the court has been moving incrementally in the direction of fairness and equality for all.
In this century, the 2003 decision striking down anti-sodomy laws and last year’s decision striking down the Defense of Marriage Act — effectively, the last legal barrier — should have made it obvious to all but the most stubborn defenders of an unjust system that the handwriting was on the wall.
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Opponents of same-sex marriage have lost a string of decisions ever since.
Public opinion has shifted remarkably in support of fairness in the law, a trend that the court’s justices must surely have been aware of. But the change in popular feeling is not why the advocates of gender equality in marriage won the day. They won because they had the law and the U.S. Constitution on their side.
One of the most prominent jurists in the federal appellate system, Judge Richard Posner, put it this way in his 40-page ruling on behalf of the Seventh Circuit in Chicago: “When there is no justification for government’s treating a traditionally discriminated against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws.”
In other words, advocates of keeping the ban could not come up with a good reason, no matter what justification they sought.
Here in Florida, U.S. District Judge Robert Hinkle of Tallahassee made another fundamental and equally valid point in the ruling issued earlier this year striking down Florida’s ban: “Those who enter opposite-sex marriages are not harmed at all when others, including these plaintiffs, are given the liberty choose their own life partners and are shown the respect that comes with formal marriage.” Translation: No harm, no ban.
Judge Hinkle stayed his ruling pending Ms. Bondi’s appeal to the 11th Circuit Court of Appeals in Atlanta, but after this week’s Supreme Court action, the stay should be lifted, as plaintiffs requested on Tuesday. The state has 17 days to reply, but all the signals from Ms. Bondi suggest she wants to keep fighting a rear-guard action at all costs.
It seems inconceivable that the court in Atlanta would rule against a right to marriage equality when it is now the law in much of the country, thanks to the Supreme Court. And late Tuesday, the California federal appellate court added to the momentum by striking down gay-marriage bans in two Western states.
Sooner or later, marriage equality will be the uncontested law in Florida. Ms. Bondi might be able to delay the effective date, but she cannot stop it.