Birchfield v. Armstrong, No. 4:15-cv-00615-RH-CAS, —- WL —– (N.D. Fla. March 23, 2017)

James Merrick Smith and Hal F.B. Birchfield
Hal Birchfield and James Merrick Smith

Florida’s widows and widowers whose same-sex spouses died before the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges declaring that state bans on same-sex marriage are unconstitutional, can now have the Florida death certificates of their loved ones changed without having to go to court.

The plaintiffs in this case sought to have the death certificates of their same-sex spouses show they had been married, but the state argued that Florida law prohibited officials from changing the documents without a separate court order for each death certificate. “Not so,” said U.S. District Judge Robert Hinkle. Here’s why:

As the Supreme Court said long ago, 42 U.S.C. § 1983 affords a person whose federal constitutional rights have been violated “a federal right in federal courts.” Monroe v. Pape, 365 U.S. 167, 180 (1961); see also Ex parte Young, 209 U.S. 123 (1908) (allowing injunctive relief against a state official for violations of federal law). In short, a federal court has jurisdiction to remedy a federal violation, including, when otherwise proper, through a class action. There are exceptions, but none applies here.

This is precisely such a case. The plaintiffs are entitled to appropriate injunctive relief correcting the state’s prior, unremedied violation of the plaintiffs’ constitutional rights. To the extent the defendant state officials simply need a clear resolution of the perceived conflict between the federal constitutional requirement and the state statute, this order provides it.

The state of course has every right to insist on appropriate documentation before amending a death certificate. In Rule 64V-1.007(3)(e), 3(f), and (5), the state has provided that a death certificate’s information about marital status or a spouse’s identity, but not both, can be corrected without a court order upon ubmission of an application, affidavit, and appropriate documentary evidence. This order provides that, upon submission of the same materials, the defendants must correct a constitutional error that affected a death certificate’s information on both marital status and a spouse’s identity.

For the backstory to this case see Federal Judge Rules Florida Must Add Same-Sex Spouses to Death Certificates:

James Merrick Smith and Hal F.B. Birchfield lived together in Florida for 42 years. They married in New York in 2012, and Smith died in Florida in 2013. At the time, Florida refused to recognize same-sex unions—so Smith’s death certificate listed him as unmarried with no surviving spouse. After the Supreme Court ruled in Obergefell v. Hodges in 2015 that the Constitution protects same-sex couples’ right to marry, Birchfield asked the state to correct Smith’s death certificate. But Florida refused, declaring that it would not correct any death certificate that falsely listed an individual as unmarried with no surviving spouse unless compelled to do so by an individual court order.

Birchfield and another gay widower, Paul Mocko, sued on behalf of themselves—and all other Floridians whose deceased same-sex spouses’ death certificates listed them as unmarried. And on Thursday, U.S. District Judge Robert Hinkle ruled in their favor and ordered the state to correct these death certificates. The state must now re-issue an accurate death certificate for Smith and all other people who were incorrectly designated unmarried at time of death because their spouses were of the same sex.

LGBTQ advocates cheered the court’s decision, as reported in Lambda Legal’s press release:

“We are thrilled that the Court has put an end to the way the State of Florida was erasing whole lives spent together when it refused to issue corrected death certificates recognizing married same-sex couples unless the surviving spouse obtained a court order,” said Karen Loewy, counsel for Lambda Legal. “Hal and Paul and other Florida widows and widowers like them suffered at the hands of the state all because their spouses died before the state’s marriage ban was struck down.”

“These surviving same-sex spouses should never have been forced to bear the burden of the state’s discrimination, but that discrimination ends today,” Loewy continued. “Hal, Paul, and other surviving same-sex spouses in Florida can’t get their loved ones back, but now all Florida surviving same-sex spouses will have the respect and dignity of accurate death certificates that recognize their relationships.”

For Mocko, who was with his husband Greg Patterson for 26 years before Patterson’s death in 2014, the victory means that the state cannot place further financial burdens on him as a prerequisite to amending his husband’s death certificate.

Mocko had been told he could not amend the certificate without first obtaining a court order, which would have required him to obtain legal representation and spend $401 in filing fees. The federal court rejected that interpretation of the law, saying no such court order was necessary.

“This is great news,” said Mocko. “I didn’t know where i would have found the money to pay for an accurate death certificate for Greg. It is a relief to know that I won’t have to get a court order just to have the State respect our relationship.”