Florida sued for possible same-sex marriage discrimination

TAMPA (FOX 13) - Fort Lauderdale resident Paul Mocko and his husband, Greg, were partners for 26 years. In 2014, the two were legally wed in San Francisco. Four months later, Greg passed away.

The state of Florida death certificate lists Greg’s spouse as “none,” and his marital status as “never married.”

Miami resident Hal Birchfield and his husband, James, were partners for 40 years. James died in 2013, a year after the two were married in New York. The death certificate from the state of Florida says James didn’t have a spouse, either.

After the U.S. Supreme Court’s ruling that states must recognize same-sex marriage, each surviving spouse asked the state for an amended death certificate and each was told they could not get one unless they got an individual court order.

On Monday, the two surviving spouses filed a federal class action lawsuit against the state of Florida, saying the state’s original omission was unconstitutional and that the state’s refusal to issue a correction - unless the spouse takes on the expense and legal burden of trying to obtain a court order - further violates equal protection rights.

"It's really a straightforward matter of treating surviving, same-sex spouses in Florida with the dignity and equality that the Constitution requires and they deserve,” said Karen Loewy, senior attorney with Lamba Legal, which is representing the plaintiffs.

Loewy says the state’s position places an undue burden on spouses who must prove their status when addressing issues like wrapping up their spouse’s affairs or accessing benefits, but it goes beyond practical matters.

“To face the loss of your loved one and then to have your relationship erased by the state where you live on your spouse's death certificate is extremely hurtful, insulting and demeaning,” she said. 

A spokeswoman for the Department of Health told FOX 13 no one was available to answer questions because of short staffing for the holidays.

The Department of Health is already fighting another federal lawsuit filed by same-sex married couples in August, which says the state’s refusal to list both parents’ names on birth certificates is unconstitutional. 

In Florida, husbands are listed as parents on birth certificates, even if their wives conceive through an artificial sperm donor.  Married spouses who aren’t listed on their child’s birth certificate face challenges taking care of their children when it comes to issues like accessing healthcare, school records, and enrolling in government programs, the lawsuit says. 

Earlier this month, the couples asked the judge to issue a decision on the case without going to trial.

“It sends a message to all these families that the state would spend time and money to fight giving them equal dignity,” said attorney Catherine Sakimura with the National Center for Lesbian Rights, which is representing the plaintiffs in the case.

“We hope that there will be a decision soon from the court, recognizing that our clients and all married, same-sex couples in Florida deserve the same treatment all married couples get in being recognized,” Sakimura added.