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"Liberty, tolerance, and respect are not zero-sum concepts."
August 22, 2014 1:47 AM   Subscribe

A federal judge has struck down Florida's state constitutional ban against gay marriage. Four state justices have previously struck down the ban, but U.S. District Judge Robert Hinkle became the first federal judge to rule the Sunshine State's ban unconstitutional.

He noted that his court is the 19th federal court to find such a ban unconstitutional.

But same-sex couples eager to marry in Florida will have to wait a little while longer: Hinkle himself issued a stay awaiting a final gay marriage ruling by SCOTUS.
posted by none of these will bring disaster (38 comments total) 6 users marked this as a favorite

 
Awesome! Good news coming out of the US! Awesome! Please continue with this trend!
posted by DoctorFedora at 2:25 AM on August 22


An enthusiastic thumbs-up has been dispatched from here in England and should reach you shortly. Congratulations! Keep it up!
posted by Drexen at 2:54 AM on August 22 [2 favorites]


Eponysterical!
posted by Sebmojo at 3:00 AM on August 22 [8 favorites]


First time in a while the 'florida' tag hasn't made me shake my head.
posted by Happy Dave at 3:34 AM on August 22 [8 favorites]


GoodNewsFilter! Flagged lol. I kid, this is amazing considering its Florida, so good work judge Hinkle.
posted by marienbad at 3:35 AM on August 22 [1 favorite]


"Liberty, tolerance, and respect are not zero-sum concepts." Well said, your honor! Hooray for Florida!

Man, Senator Marco Rubio must be spitting nickels right about now.
posted by magstheaxe at 3:40 AM on August 22 [4 favorites]


These are great. Full Stop.

Worth noting there have been tweleve instances of these rulings being stayed mostly pending the SCOTUS. Just last week the Supreme Court itself temporally blocked Virginia marriage equality from going forward even though Virginia's own Attorney General refuses to appeal the ruling against the ban. Middle of next year would be the soonest the court would take up the case.

That being said the more lower courts making this ruling the better, it should make it harder for the SC to ignore so many pretty clear cut rulings.
posted by edgeways at 3:41 AM on August 22 [2 favorites]


Scalia mentions count: 3.
posted by roomthreeseventeen at 4:19 AM on August 22 [9 favorites]


I was recently at a get together with some folks and someone opposed to this made a comment about activist judges and that if they were a judge they wouldn't let things like this happen. I actually got to reply, 'There is a reason you are a (insert profession here) and not a judge. You understand your craft well, but not the law or constitutionality.' Needless to say, there was a litany of curses directed at me that followed.
posted by Nanukthedog at 5:47 AM on August 22 [18 favorites]


Complaints about activist judges generally come down to whose ox is getting gored.
posted by mrbigmuscles at 5:57 AM on August 22 [6 favorites]


I wish I felt...optimistic...about what should happen once SCOTUS decides to rule on the matter. It would certainly seem probable that the high court would look at the preponderance of rulings by the lower courts and affirm their opinions. But, I can also very easily imagine the conservatives on the court banding together and taking the opportunity to deliver a nation-wide smack-down to all the lower courts...especially the ones who had the temerity to quote Scalia in their rulings.

This view, of course, is part-and-parcel with my larger feeling that the next 10-15 years in the US are actually going to be very bleak, with the right re-asserting itself in some very draconian ways, starting with the coming mid-terms.
posted by Thorzdad at 6:00 AM on August 22 [1 favorite]


This view, of course, is part-and-parcel with my larger feeling that the next 10-15 years in the US are actually going to be very bleak, with the right re-asserting itself in some very draconian ways, starting with the coming mid-terms.

Didn't this already happen 2001-2008?
posted by Sangermaine at 6:07 AM on August 22


I want to be happy, but I remain wary until people can actually, you know, marry. Still, the more cases in favor might hold some weight in the Supreme Court. It might even be called a movement, an Anti-Scalia Movement (in five-point harmony), using the man's words to actually strike down intolerance. Could be an amusing historical footnote.
posted by dawg-proud at 6:09 AM on August 22 [1 favorite]


This is good news indeed, the more rulings in this direction will make it harder for the conservatives in the SCOTUS to rule against them.
posted by arcticseal at 6:10 AM on August 22


I think we're at low tide on this one, and the right had better get in the boat.
posted by zennie at 6:11 AM on August 22


It would certainly seem probable that the high court would look at the preponderance of rulings by the lower courts and affirm their opinions.

Aren't the lower courts basing their opinions on the last SCOTUS ruling? So that's a bit circular.
posted by smackfu at 6:31 AM on August 22


Happy Dave: First time in a while the 'florida' tag hasn't made me shake my head.

We were in Florida on vacation last week and one of the kids said that they wanted to move there to be closer to Disney World. I told them that easily half of the "weird news" stories came from Florida, and that it was a really strange place. I guess this story belongs in the "not weird" story pile. :7)
posted by wenestvedt at 6:44 AM on August 22 [3 favorites]


Excellent news.

Unfortunately, I am concerned that the Supreme Court will rule against, no matter how many lower rulings in favor exist.

The question that the Court will eventually be asked to answer is whether states can legally ban gay marriage. SCOTUS had the opportunity twice to rule on that specific issue in the last few years: in both the Proposition 8 case and the Windsor case that struck down DOMA. It would have been appropriate for them to do so either time yet they chose not to. Prop 8 was dismissed because California refused to defend the ban passed by its own voters. Windsor's decision was much less promising for same sex marriage advocates, because DOMA was declared unconstitutional as a federal intrusion into states rights. Specifically the long-standing tradition where the right to define marriage is defined exclusively by a state. If Windsor is any indication, then since SCOTUS has ruled in the past that states are solely empowered to define marriage, that won't bode well for federal judicial decisions which try to supersede that.

Two cases currently pending a hearing by SCOTUS are Kitchen v. Herbert (Utah) and Bishop vs. United States (Oklahoma). In both cases, the public voted strongly in favor of banning same-sex marriage. Utah's constitutional amendment 3 was passed with 66% of the vote. Oklahoma's "Oklahoma Question 711" was passed with 76% of the vote. Both states have been aggressive about defending their right to ban same sex marriage.

If SCOTUS sees this as an equality issue, the bans will be overturned. If they see it as a states' rights issue though, the bans will likely stay. No matter what Scalia said in a previous decision and no matter how many lower federal courts rulings say otherwise.

Don't count your chickens just yet, folks.
posted by zarq at 6:45 AM on August 22 [3 favorites]


Windsor decision for reference. (pdf).
posted by zarq at 6:48 AM on August 22


I thought it seemed a little brighter here today.

No, wait, that's my retinas slowly burning out from having lived here too long.

Still, great news -- and about time too.
posted by cmyk at 6:55 AM on August 22


Aren't the lower courts basing their opinions on the last SCOTUS ruling? So that's a bit circular.

Yes, but it's not as circular as it sounds. The last SCOTUS opinion (Windsor) addressed the question before it, which was about the constitutionality of DOMA. Justice Scalia, in his dissent, angrily opined that the reasoning in the majority opinion would be used by courts across the country to invalidate state bans on gay marriage.

As it turns out, courts across the country are doing exactly that, but those state and federal court opinions are only extrapolating a legal opinion based on what the SCOTUS said on a related point. The SCOTUS still has the opportunity to rule on whether individual states have a constitutional right to ban same-sex marriage.
posted by Ben Trismegistus at 7:12 AM on August 22


\o/

(I share the pessimism, but this is a tiny note of good news in an otherwise unimaginably bleak summer.)
posted by feckless fecal fear mongering at 7:15 AM on August 22 [1 favorite]


I told them that easily half of the "weird news" stories came from Florida, and that it was a really strange place.

This is pretty much catnip to a kid.
posted by echocollate at 7:23 AM on August 22 [4 favorites]


Don't count your chickens just yet, folks.

It's not even chickens, really. Whenever these cases hit SCOTUS (and if it isn't in the next term then they are cowards), we all know how Scalia, Alito, Roberts, and Thomas are going to go.

We also all know how Sotomayor, Ginsberg, Breyer, and Kagan will go.

It's all going to come down to a single vote: Kennedy. Here's hoping he wants to be on the right side of history.
posted by feckless fecal fear mongering at 8:16 AM on August 22


If "Florida weird news" is a lure, perhaps Reddit's "Florida Man" news collection will scare them away.

Florida's previous ruling on same sex marriage, by Monroe County Circuit Judge, Luis Garcia, which only applied to Monroe County. The link in that post is dead, so here's a live link, and a series of AP reports updating that story, which notes that there were no legal same sex marriages in Monroe County, due to Circuit Judge Luis Garcia siding with Attorney General Pam Bondi to keep the stay on his decision.
posted by filthy light thief at 8:27 AM on August 22 [1 favorite]


I told them that easily half of the "weird news" stories came from Florida, and that it was a really strange place.

As someone who grew up and Florida and got the F out, I gotta say, if we we're going to be making these anecdotal generalizations, I can say that most the places I've lived in this country are pretty strange (I'm looking at you, Littleton, NH).

I know Florida has been the butt of a joke for many years, and I love reading about Florida Man as much as anyone, but I think it's going a little far to tell your kid half of the weird news comes from there. What does that even mean, really? Sometimes it's easy to just simplify and say Florida is filled with crazy people (and the journalism there doesn't help), but I'm being a little defensive because there are crazies everywhere.

Anyway, I'm glad to hear about the ruling.
posted by heycoder at 8:33 AM on August 22 [1 favorite]


SCOTUSblog today: Reading the Court’s signals on same-sex marriage
posted by roomthreeseventeen at 8:56 AM on August 22


we all know how Scalia, Alito, Roberts, and Thomas are going to go.

We also all know how Sotomayor, Ginsberg, Breyer, and Kagan will go.

It's all going to come down to a single vote: Kennedy.


I'm still predicting Roberts will side with a 6-3 majority upholding the lower courts. As he sees public support climb over 50% nationally for marriage equality and has seen that a few states have even legalized it via the ballot, you can imagine he would be more inclined to accept that marriage inequality actually is unfair, rather than slipping into the standard conservative position of letting each state figure it out for itself through the lawmaking process. He's young enough that as the titular head of the Court, I can imagine him also clearly understanding that this decision will either mark him as the Chief Justice on the Right Side of History or the Chief Justice on the Wrong Side of History. So every lower court decision in support of marriage equality probably edges him closer to joining a pro-marriage equality majority.

I can see the landscape changing for him if the circuit court opinions wind up just about evenly split (which could happen I guess). In those circumstances he might be more willing to adopt a mindset of "there's clearly no consensus on this yet, this is a decision best left to the political process."

As for Kennedy, he's practically the architect of American gay-rights jurisprudence, so it's hard for him to imagine backsliding on this. I did read a provocative piece in the NYT a month or so ago suggesting that the rationale in Kennedy's opinions was based primarily on identifying an anti-gay animus in the laws being reviewed. The piece noted that several of the more recent lower court decisions didn't find much in the way of an anti-gay bias in the lawmaking process and instead concluded that it's just simply fundamentally unfair to deny everyone the right to marriage. Even if there were no apparent anti-gay bias in the lawmaking process, these courts still would have ruled in favor of marriage equality. I personally think that outlawing marriage equality can only be the result of anti-gay bias, but the article pointed out that the lower courts had not really engaged in any discussion of a record before the court that showed this kind of bias (and in one case maybe the court stated that they found no evidence of such bias). The article argued that this could be a stumbling block for Kennedy, because he had been willing to rule the way he had based on findings that this type of bias existed, and in his mind, any laws based on a discriminatory motive would be unconstitutional.

It's still just impossible for me to conceive of Kennedy, having written so much of the meaningful law on this issue, to truly be a swing vote, though. He's like the Grandfather of Marriage Equality.

I wonder if all justices would vote to accept cert, too. If I were Alito, Thomas, or Scalia, and interested in overturning the lower court, I would think my best chance would come if one of the group of Kennedy, Sotomayor, Kagan, Ginsberg or Breyer would die or retire. So I could see them maybe not vote to accept cert, hoping that the liberal bloc would not accept cert. (And for what it's worth, my belief about Scalia is that he cares more about being right than being in the majority, and he's probably not at all displeased that he correctly predicted the path of the lower courts in the wake of Windsor and isn't burned in the least that he's consistently mentioned in opinions legalizing marriage equality).
posted by MoonOrb at 9:14 AM on August 22 [2 favorites]


I'm still predicting Roberts will side with a 6-3 majority upholding the lower courts.... He's young enough that as the titular head of the Court, I can imagine him also clearly understanding that this decision will either mark him as the Chief Justice on the Right Side of History or the Chief Justice on the Wrong Side of History.

I can certainly see this as a possibility. I definitely believe that Roberts is concerned about his legacy, and I think his Obamacare decision was the clearest evidence of this. I still don't think it's likely, because it would represent a pretty big shift for him, but it's possible.

It's still just impossible for me to conceive of Kennedy, having written so much of the meaningful law on this issue, to truly be a swing vote, though. He's like the Grandfather of Marriage Equality.

Agreed. It's hard to imagine that Kennedy would go this far and then not take the final step. "Animus" certainly plays a big role in his prior decisions, but it's not as if he's set it up as a bright-line test. When Kennedy first discussed anti-gay animus in an opinion (Romer, I think it was), it was almost an afterthought, like, "and another thing..." It was Scalia who ran with it in his dissent, and essentially said that Americans are within their rights to express animosity towards things they abhor.

I wonder if all justices would vote to accept cert, too. If I were Alito, Thomas, or Scalia, and interested in overturning the lower court, I would think my best chance would come if one of the group of Kennedy, Sotomayor, Kagan, Ginsberg or Breyer would die or retire. So I could see them maybe not vote to accept cert, hoping that the liberal bloc would not accept cert.

I've thought about this a lot. If there's no circuit split (still waiting to see what the Sixth Circuit will do), it's entirely possible that the Court denies cert or issues a per curiam opinion stating only that there's no disagreement among the federal circuits, so there's no need for the Court to rule on the issue. When I've stated this in the past, others have said that there's no way the Court will pass up the opportunity to have the final say on this issue. That's probably true, but I can see them kicking the ball down the road.
posted by Ben Trismegistus at 9:28 AM on August 22 [1 favorite]


Complaints about activist judges generally come down to whose ox is getting gored.

Depending on the ox, the complaint is often more an ironic comment about the complainers than the ox, itself.
posted by Mr. Six at 9:41 AM on August 22


A little context for those of you fortunate enough to not live in FL. This shit-show has been going on for months with judges striking down the constitutional amendment and then the AG demanding stays because she cynically continues to defend the amendment. She's steeped in tea-party ideology and she's trying to score style points with her base. The governor of FL continues to support her because he's also pandering to the same wingnuts.

So yes, this is something to get excited about like opening a present on Xmas morning but it's also a huge let-down like discovering said present contains a shit sandwich.
posted by photoslob at 9:52 AM on August 22


I can't see Sotomayor/Kagan/Breyer/Benevolent Dictator For Life Ginsberg denying cert unless they're 100% sure they can't get Kennedy and/or Roberts on side. I'm quite sure those four really, really want SCOTUS to issue a final ruling on the matter to make the dinosaurs STFU.
posted by feckless fecal fear mongering at 9:56 AM on August 22


✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰✰

A star for each state with legal marriage equality. (Including states with stayed judgment like Florida.)
posted by stoneweaver at 10:01 AM on August 22 [1 favorite]


Probably true, fffm. And it only takes four votes to grant cert.
posted by Ben Trismegistus at 10:01 AM on August 22


Middle of next year would be the soonest the court would take up the case.

Is this true? I thought the SCOTUS would be meeting in September to decide what cases to take on with their next term starting in October. It's likely the middle of next year would be the soonest they would RULE on the issue, but they have the opportunity to take it up in just the next couple of months.
posted by hippybear at 10:39 AM on August 22


Florida Man Can Now Marry Other Florida Man.
posted by gottabefunky at 11:08 AM on August 22 [3 favorites]


Man, Senator Marco Rubio must be spitting nickels right about now.

From that link:

Rubio drew the line sharply at marriage equality and accused supporters of same sex unions of “intolerance.”

“I promise you even before this speech is over I’ll be attacked as a hater or a bigot or someone who is anti-gay,” Rubio said. “This intolerance in the name of tolerance is hypocrisy. Support for the definition of marriage as one man and one woman is not anti-gay, it is pro-traditional marriage.”


This is just awesome. I guess we can be as bigoted and prejudiced as we want if we spin it right. "Support for me getting paid more than my female co-workers is not sexist, it's being pro-'traditional gender roles'." "Support for racial segregation is not racist, it's being pro-'separate-but-equal'.". You guys are looking at this all wrong, we're glass-half-full types.
posted by Hoopo at 2:02 PM on August 22


One. More. Small. Step.
posted by BlueHorse at 8:05 PM on August 22 [1 favorite]


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