For the first time, a federal appeals court recently ruled that same-sex couples have a constitutional right to marry, moving the country another step closer toward equality for all Americans. Yet Florida continues to defend the state's same-sex marriage ban in tortured court filings that attempt to justify discrimination without offending its considerable number of gay residents. It is time for the state to stop defending the indefensible, or Attorney General Pam Bondi eventually will be on the losing end in court and on the wrong side of history.
In a landmark ruling last summer, the U.S. Supreme Court struck down part of the federal Defense of Marriage Act and ruled that same-sex couples could receive federal benefits. But the court was silent on the constitutionality of same-sex marriage bans in states. Some 19 states have now legalized same-sex marriage. Florida voters approved a constitutional amendment to define marriage as between one man and one woman in 2008, but the state faces lawsuits in both state and federal courts by same-sex couples who seek to marry. It is only a matter of time before the courts lift the ban in Florida just as they have in other parts of the country.
Yet Bondi has mounted a vigorous defense on Florida's behalf, saying that her job is "not to write the law, but to defend it." In response to a federal lawsuit aimed at forcing the state to recognize same-sex marriages performed legally in other states, Bondi's office delivered an awkwardly worded brief that claimed "disrupting Florida's existing marriage laws would impose significant public harm."
"Florida's marriage laws, then, have a close, direct, and rational relationship to society's legitimate interest in increasing the likelihood that children will be born to and raised by the mothers and fathers who produced them in stable and enduring family units," Bondi's office said in court documents.
That sounds like the attorney general questions whether gay couples can raise children as well as heterosexual couples, even though the courts earlier struck down Florida's ban on gay adoptions.
Attorneys general throughout the country are wrestling with whether to defend state bans on same-sex marriage, according to the National State Attorneys General Program at Columbia Law School. Some, like Bondi, say defending state law is their job regardless of personal beliefs. In Arkansas, for example, the attorney general will defend the state's same-sex marriage ban even though he supports gay marriage. The more enlightened, such as Kentucky's attorney general, have opted not to defend laws they see as unjust or unconstitutional. Bondi declined to address the issue with the Times' editorial board.
Bondi should follow her counterparts in Nevada, Virginia and Pennsylvania who have refused to defend their states' same-sex marriage bans. The law once upheld slavery, denied women and blacks the right to vote, segregated schools and banned interracial marriage. In time, the courts will continue to act as they did in those situations and overturn all discriminatory same-sex marriage bans. It makes no sense to defend them, and Florida should abandon a fight it cannot win legally or morally.