A federal judge ruled Thursday that Florida’s ban on same-sex marriage is unconstitutional, but stayed his ruling pending appeal, preventing the issuing of same-sex marriage licenses. The decision follows multiple rulings against Florida’s ban by state judges over the past few weeks. It is also the 19th federal decision overturning a same-sex marriage ban since the Supreme Court overturned the Defense of Marriage Act.
According to Judge Robert L. Hinkle, a Clinton appointee, banning same-sex couples contradicts their right to equal protection under the law guaranteed by the Constitution’s Fourteenth Amendment. He opened his decision by noting that nearly 50 years after the Supreme Court’s ruling in Loving v. Virginia, “the arguments supporting the ban on interracial marriage seem an obvious pretext for racism; it must be hard for those who were not then of age to understand just how sincerely those views were held.” Likewise, “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 countered Florida’s claim that defining marriage is a state issue, pointing out that its suggestion “that this is just a federalism case — that the state’s laws are beyond review in federal court — is a nonstarter.” Further, he pointed out that 20 of the 22 plaintiffs were couples who married in other states. “The defendants do not explain why, if a state’s laws on marriage are indeed entitled to such deference, the State of Florida is free to ignore the decisions of other equally sovereign states.”
Florida had also employed the familiar argument that the privileges of marriage should be reserved for couples who can naturally procreate. Hinkle countered that given how many different-sex couples marry without ability or intention to have children, “the notion that procreation is an essential element of a Florida marriage blinks reality.” “The undeniable truth,” he reasoned, “is that the Florida ban on same-sex marriage stems entirely, or almost entirely, from moral disapproval of the practice.”
“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,” he concluded. “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. Tolerating views with which one disagrees is a hallmark of civilized society.”
State Attorney General Pam Bondi (R) has appealed the state-level rulings and will likely to continue to defend the state’s ban in federal court as well.