Lawmakers Leave Gay Marriage Ban On The Books

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TALLAHASSEE (NSF) – It's been more than a year since same-sex marriages became legal in Florida, but a state law banning the unions is still on the books, and a proposal to repeal it seems doomed.

Clearing the statutes of the gay-marriage ban is among a handful of measures dealing with LGBT issues either ignored by the Republican-controlled Legislature or fated to fade away before the 2016 session ends next month.

Only one piece of legislation --- aimed at giving lesbians the opportunity to be named as a "parent" instead of a "father" on birth certificates --- has even a chance of passing this session, and that chance is extremely thin.

The birth certificate measure, the proposed repeal of the ban on gay marriage and a third bill that would allow pastors to refuse to marry same-sex couples --- something already guaranteed under the First Amendment --- are byproducts of court decisions striking down same-sex marriage bans as unconstitutional.

A closely divided U.S. Supreme Court in June ruled that same-sex couples have a fundamental right to marry. The decision came nearly a year after a federal judge in Tallahassee struck down Florida's voter-approved ban on gay marriage as unconstitutional.

U.S. District Judge Robert Hinkle's ruling went into effect in January 2015, nearly six months before the high court decision, but Hinkle has yet to issue a final order in the case. An appeals court in October dismissed Florida's legal fight about same-sex marriage and said Hinkle should consider questions about whether the state is required to pay fees for the plaintiffs' attorneys, who are seeking $455,000 for their work on the case.

"I just want the door closed permanently in the state of Florida, by the state of Florida, with respect to the statutes and the constitutional amendment," Jim Brenner, a plaintiff in the Florida case, told The News Service of Florida on Monday. "We need a final order from Judge Hinkle."

The "pastor protection" act, which religious conservatives contend is needed to protect minsters and churches that refuse to marry same-sex couples, is headed to the House floor for a full vote and is slated for a final Senate committee vetting this week.

In contrast, an attempt to remove the same-sex marriage prohibition from state statutes has not been heard by a single committee in either chamber.

For Republicans, the issue could be too controversial to even debate, especially in an election year.

"A lot of people still feel firmly that the Supreme Court overstepped its bounds and that it is a states' rights issue that we should be able to decide who, what, where and when marriages happen within our state boundaries," House Rule Chairman Ritch Workman, R-Melbourne, said in an interview.

Changing the state Constitution, amended by voters to include the gay marriage ban in 2008, would require a statewide vote. But, for many Floridians, leaving the ban in legislatively written statutes carries more than a symbolic threat.

Rep. Alan Williams, who filed the measure to repeal the law, said he wanted to amend Florida's statutes to reflect the Supreme Court decision and to provide assurances to clerks of court, some of whom initially balked at Hinkle's ruling, based on advice from their lawyers.

"Obviously, this is one of the most polarizing issues of our time in the Legislature, and in the country. This decision by the Supreme Court has begun to swing doors wide open for individuals that otherwise didn't have that," Williams, D-Tallahassee, said. "As an African-American, I understand all too well the significance of being able to have equal rights under the law."

For Rep. David Richardson, the sponsor of the measure dealing with birth certificates, the issue is even more personal. The Miami Beach Democrat is the only openly gay member of the Legislature.

Richardson tried to get Workman to include the repeal of the gay-marriage ban in what is known as a "reviser" bill, passed by lawmakers annually to clean up state statutes.

But Workman said reviser bills are supposed to correct errors such as punctuation and grammar and aren't intended to deal with policy issues.

Richardson said he understands that Republicans control the agenda in Tallahassee, but he called the repeal of an unconstitutional law a "no-brainer."

"It just shows you how far the majority party feels they must go because they don't want to take a vote on something that may be controversial," he said. "What they're saying is that, even in a situation where the Supreme Court has determined that a law is unconstitutional, we don't want to take it off our books because we don't want to take the risk that someone's going to have to vote on it and a member may be punished at the polls."

When asked if legislators should repeal the statute, Gov. Rick Scott said the "law is already clear."

"The Supreme Court has made that decision," Scott told the News Service late last week.

Richardson's plan to change birth certificates to reflect the Supreme Court decision (HB 1151) received unanimous approval from a House committee earlier this month after he amended the measure to ensure that documents will still label husbands as "father."

But the measure has two more committee stops before it is scheduled to go to the House floor, and a Senate companion bill has not received a hearing. Richardson remains hopeful that he can tack his bill onto another piece of legislation, but time is running out.

Meanwhile, the issue may be settled in court if lawmakers don't act.

Two female couples and an advocacy group are asking a federal judge to require the Florida Department of Health to list both spouses on birth certificates of children born into same-sex marriages --- as the department typically does when married parents are a man and a woman. The plaintiffs in the Brenner marriage case are also asking Hinkle to sort out the issue.

Lawyers for the state argue that the department lacks the authority to change the rule without legislative approval.

Florida is one of only four states that have not changed the language on birth certificates to reflect the high court ruling, according to Richardson, but Florida's laws regarding agency rule making may be more restrictive.

Changing the statute about birth certificates would save women in same-sex marriages --- now forced to go to court to have their parentage legally recognized, unless they are the birth mother --- thousands of dollars in legal fees, Richardson said.

"There's a presumption in state law that in a marriage, when a woman has a baby, the husband is presumed to be the father, unless that's challenged. Same-sex couples want to enjoy the same benefit. … Even though we know biologically that is not possible, legally they want to have the same benefit," he said.

The News Service of Florida's Dara Kam contributed to this report.