Same-sex marriage is the law of the land, but the legal battle between Attorney General Pam Bondi and gay couples in Florida continues to drag on.
Lawyers for plaintiffs in a key Florida gay-marriage lawsuit asked a federal appeals court Thursday to reject Bondi's request to dismiss the case as moot. The plaintiffs want Tallahassee U.S. District Judge Robert Hinkle, who ruled last year that Florida's voter-approved ban on same-sex marriage is unconstitutional, to issue a permanent injunction against the state.
The case is still "live," lawyers for the gay couples argued, because Bondi is trying to get out of paying the plaintiffs' legal fees associated with the appeal, which was pending when the U.S. Supreme Court ruled in June that same-sex couples have a fundamental right to marry. The Supreme Court ruling came in a case from other states but cemented Hinkle's decision on the constitutionality of Florida's ban.
Bondi's commitment to uphold the U.S. Supreme Court's June ruling sounds "particularly suspicious" since a dismissal would absolve the state from an obligation to pay the plaintiffs' lawyers, Jacksonville attorneys William Sheppard; his wife and law partner, Betsy White; and Samuel Jacobson, wrote.
Last week, Bondi's lawyers asked the 11th U.S. Circuit Court of Appeals and Hinkle to dismiss the case as moot because of the Supreme Court's ruling.
"There is no need for anything further from this court,'' Bondi's office argued in a document filed with Hinkle on Aug. 25.
In a telephone interview, White called Bondi's approach to the legal fees disingenuous.
"It's kind of a shell game. It's against all case law. These lawyers have been around long enough that they know how procedurally these things work," she said. "I find their position to be pretty dishonest."
The plaintiffs' lawyers also argued in filings Thursday that, apart from the issue about the attorneys' fees, Hinkle needs to issue an order permanently banning the state from enforcing the gay marriage prohibition, which remains on the books.
"…The ban on Florida's same-sex marriage remains lifted today only because of the orders of this court, and in spite of the defendants' unending attempts at every level of the federal judiciary to circumvent this court's preliminary injunction and enforce the state's ban on same-sex marriage," the lawyers wrote in a 28-page response filed with Hinkle on Thursday.
Since the landmark Supreme Court decision, the state hasn't done anything to remove Florida's ban on same-sex marriage from the law, the attorneys argued.
"Consequently, there are no bureaucratic hoops that the defendants would need to jump through in order to re-implement the ban on same-sex marriage," they wrote.
In the meantime, the appellate court needs to send the case back down to Hinkle so he can issue a permanent injunction against the law and settle the dispute over the legal fees, the lawyers argued.
Hinkle ruled last year that the state's constitutional ban on gay marriage, approved by voters in 2008, was unconstitutional and issued a preliminary injunction against the law. At the same time, however, he put a stay on his decision. That stay ran out in January, when gay marriages became legal throughout Florida.
The plaintiff's lawyers pointed out that the state, led by Bondi, has "fought vehemently to resist" Hinkle's lifting of the ban on same-sex marriage. Bondi appealed his ruling to the 11th U.S. Circuit Court of Appeals, even going so far as to ask the Supreme Court to intervene, but dropped the appeal after the Supreme Court's decision earlier this summer.
Representing other state and local officials, Bondi has also repeatedly asked Hinkle for clarification of his order, most recently regarding the issuance of birth certificates to children of same-sex couples. The matter is still pending.
