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Florida ban on same-sex marriage nullified

Ruling that Florida’s ban on same-sex marriage “stems entirely, or almost entirely, from moral disapproval of the practice,” a federal trial judge in Tallahassee on Thursday ruled that the prohibition is unconstitutional.  In a thirty-three-page decision, U.S. District Judge Robert L. Hinkle ruled against the ban, but put his decision on hold to allow for an appeal.

The new ruling made Judge Hinkle’s court the twentieth federal court in a row, over the past fourteen months, to rule as he did, and it followed similar decisions by four separate state court judges in Florida.  State officials have appealed the other decisions in state court; an appeal in this case would go to the U.S. Court of Appeals for the Eleventh Circuit.

The new decision followed the pattern of the widest-ranging recent decisions against same-sex marriage restrictions:

* It ruled that the Supreme Court had not already settled the same-sex marriage issue in a one-line summary decision in 1972 (Baker v. Nelson).

* It struck down not only a ban on new same-sex marriages, but also a ban on official recognition of such marriages performed in other states for Florida couples.

* It found that what was at issue was not a special right to marry a person of the same sex, but instead an equal right for gay and lesbian couples to enjoy a fundamental right to marry.

* It subjected the Florida provisions to the toughest constitutional test — “strict scrutiny.”

* It ruled that none of the state’s attempts to justify the ban could satisfy that test and, in fact, found that they would fail even under less rigorous constitutional tests.

* It treated, almost with disdain, the one argument that is most often repeated by the defenders of such bans:  that the prohibition is necessary to protect the institution of marriage because of the unique capacity of opposite-sex couples to have children by natural means.  “The notion that procreation is an essential element of a Florida marriage blinks reality,” the judge wrote.  Even further, he said, that “is the kind of argument that, in another context, might be accompanied by a suspicion of mendacity.”

As to the moral disapproval point, the judge said the Supreme Court had already rejected that as a defense for discrimination based on sexual identity.  And, without that, he added, the state “must fall back on make-weight arguments that do not withstand analysis.”

Florida’s voters six years ago approved the ban, with “Amendment 2” passing by a margin of sixty-two percent to thirty-eight percent.  Similar broad bans are written into state statutes.  Judge Hinkle struck down all of them.

In ordering a delay in the enforcement of his ruling against state officials, Judge Hinkle said his stay would remain in place until ninety-one days after similar stays by federal appeals courts in same-sex marriage cases had been lifted.


Recommended Citation: Lyle Denniston, Florida ban on same-sex marriage nullified, SCOTUSblog (Aug. 21, 2014, 5:55 PM),