Add yet another victory to the list for same-sex marriage advocates in Florida. After victories in four counties, a federal judge made a statewide ruling earlier today. U.S. District Judge Robert L. Hinkle in Tallahassee held that Florida's ban violates guarantees of equal protection and due process, but stayed his decision pending appeal. The decision covers both in-state and recognition of out-of-state marriages.
What's the real-world effect? Very little, for now. It's a near certainty that the Supreme Court will take on the issue of same-sex marriage during its next term, which begins this fall. Given that Judge Hinkle's opinion was stayed pending appeal, and any appeal to the Eleventh Circuit would likely not happen before SCOTUS weighs in, this is but a minor footnote, albeit a positive one.
Here are five takeaways from Judge Hinkle's ruling:
1. Gay Marriage: Interracial Marriage's Spiritual Successor?
Judge Hinkle began by comparing Florida's same-sex marriage ban to past bans on interracial marriage.
"When observers look back 50 years from now, the arguments supporting Florida's ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination," Hinkle wrote. "Observers who are not now of age will wonder just how those views could have been held."
2. It's Another in a Long Line of Cases.
"To paraphrase a civil rights leader from the age when interracial marriage was struck down, the arc of history is long, but it bends toward justice," Hinkle wrote. "All of this accords with the unbroken line of federal authority since Windsor. Indeed, except for details about these specific parties, this opinion could end at this point, merely by citing with approval the circuit decisions striking down state bans on same-sex marriage."
But Hinkle didn't stop there. He spent pages addressing standing, proper parties to the lawsuit, and jurisdiction, citing Loving v. Virginia (the historic interracial marriage case) and Windsor to support his holding that "it is settled that a state's marriage provisions must comply with the Fourteenth Amendment and may be struck down when they do not."
3. The 'Procreation' Argument Is Still Crap.
What about the oft-made argument by states that same-sex marriage bans promote responsible procreation because those couples can't procreate? Take it away, Judge:
"Florida has never conditioned marriage on the desire or capacity to procreate. Thus individuals who are medically unable to procreate can marry in Florida. If married elsewhere, their marriages are recognized in Florida. The same is true for individuals who are beyond child-bearing age. And individuals who have the capacity to procreate when married but who voluntarily or involuntarily become medically unable to procreate, or pass the age when they can do so, are allowed to remain married. In short, the notion that procreation is an essential element of a Florida marriage blinks reality."
4. Baker Has Been Superseded.
Another oft-made argument is that Baker v. Nelson, a one-line order from 1972 dismissing a challenge to a state's gay marriage ban for want of a substantial federal question, controls. As we noted a few days ago, pretty much everyone has held that Baker has been superseded by intervening authority, though one U.S. Sixth Circuit judge seemed fixated on it during oral arguments in a pending case.
Judge Hinkle agreed, noting, "Every court that has considered the issue has concluded that the intervening doctrinal developments -- as set out in Lawrence, Romer, and Windsor -- have sapped Baker's precedential force."
5. This Won't Harm Opposite-Sex Marriages.
As to the potential harm to opposite-sex marriages, Hinkle 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. Liberty, tolerance, and respect are not zero-sum concepts.
"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," Hinkle continued. "Tolerating views with which one disagrees is a hallmark of civilized society."
- Brenner v. Scott - Order Granting Injunction (Scribd)
- Virginia Is for All Lovers: Gay Marriage Ban Fails in 4th Cir. (FindLaw's U.S. Fourth Circuit Blog)
- Another Fla. Court Rules for Gay Marriage; State Appeals (FindLaw's U.S. Eleventh Circuit Blog)
- First Pro-Gay Marriage Ruling in Florida Arrives: 5 Takeaways (FindLaw's U.S. Eleventh Circuit Blog)
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