Nearly a year after same-sex marriages started in Florida, a legal decision could be looming in a dispute about birth certificates for children of same-sex couples.
Two couples and an advocacy group asked a federal judge last week 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 request for summary judgment, which would short-circuit the need for a trial, contends that the department's refusal to list both spouses in same-sex marriages on birth certificates violates couples' constitutional rights.
"Defendants' (agency officials') refusal to issue birth certificates listing both parents when a same-sex spouse gives birth to a child in Florida treats married same-sex couples differently than married different-sex couples, denying married same-sex couples one of the most important protections provided to married couples under state law,'' said the document filed in federal court in Tallahassee. "Defendants' conduct exposes plaintiffs and their children to serious harms, while serving no legitimate, much less compelling, state interest."
But department attorneys argue that the agency does not have the power to make the change on its own. At least one of the issues in the case is a state law that says if a "mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction."
"Defendants (agency officials) contend that the department is an executive agency whose powers are limited to the ability to administer and enforce the laws and rules related to the state of Florida's public health system including the authority to act as the state's registrar of vital statistics pursuant to (a section of state law),'' according to an October court document that outlines the positions of both sides. "Therefore, the department lacks the authority to revise existing legislation or to apply case law in a manner that invalidates existing legislation without clear judicial authority to do so."
The lawsuit, whose plaintiffs include the Equality Florida Institute advocacy group, was filed in August, about seven months after same-sex marriages began in Florida. The lawsuit also came less than two months after a landmark U.S. Supreme Court decision that established a legal right for same-sex couples to marry.
Two of the plaintiffs in the birth certificate case, Kari Chin and Deborah Chin, were married 2013 in Massachusetts, with Kari Chin giving birth in February 2015 to a son, according to last week's filing. The Department of Health's Office of Vital Statistics issued a birth certificate listing Kari Chin as a parent but declined to list both spouses.
The other plaintiffs, Alma Vazquez and Yadira Arenas, were married in 2013 in New York, with Vazquez giving birth in March 2015 to a daughter. The court filing said Vazquez was told she had to be listed as unmarried to get a birth certificate for the child.
U.S. District Judge Robert Hinkle has set a Jan. 6 deadline for the Department of Health to respond to the plaintiffs' motion for summary judgment. Hinkle last year ruled that Florida's ban on same-sex marriage was unconstitutional, which set the stage for marriages to begin.
News Service of Florida