“Trying to do harm”

June 14th, 2016

During an interview about the massacre in Orlando, CNN host Anderson Cooper charged that Florida Attorney General Pam Bondi  was a hypocrite for her support of the LGBT community, in light of her defense of Florida’s marriage laws. Cooper said that as Attorney General, Bondi argued that “that gay people simply by fighting for marriage equality were trying to do harm to the people of Florida.” Here is a segment of the lengthy exchange:

COOPER: I talked to a lot of gay and lesbian people here yesterday who are not fans of yours and who said that they thought you were being a hypocrite, that you for years have fought — you basically gone after gay people, said that in court that gay people simply by fighting for marriage equality were trying to do harm to the people of Florida. To induce public harm, I believe was the term you used in court. Do you really think you’re a champion of the gay community?

BONDI: Let me tell you. When I was sworn in as attorney general, I put my hand on the Bible and was sworn to uphold the constitution of the state of Florida. That’s not a law. That was voted in to our state constitution by the voters of Florida. That’s what I was defending. Had nothing to do — I’ve never said I don’t like gay people, that’s ridiculous.

COOPER: But do you worry about using language accusing gay people of trying to do harm to the people of Florida when doesn’t that send a message to some people who might have bad ideas in mind?

BONDI: Anderson, I don’t believe gay people could do harm to the state of Florida. We’re human beings.

COOPER: But you argued that in court.

BONDI: My lawyer argued a case defending what the Supreme Court allowed the voters to put in our state constitution.

I suspect Cooper was referring to Florida’s Motion to Dismiss in Brenner v. Scott. (I have archived the pleadings from all of the SSM cases for my research on The Process of Marriage Equality). The AG wrote in the introduction of the brief:

The Court should also deny the preliminary injunction motions because there is no likelihood of success on the merits, there is no immediacy requiring a preliminary injunction, and disrupting Florida’s existing marriage laws would impose significant public harm.

Florida did not argue that “gay people simply by fighting for marriage equality were trying to do harm to the people of Florida.” The plaintiffs in this case sought a motion for a preliminary injunction. This is a form of immediate, equitable relief. One of the arguments courts consider in denying a preliminary injunction is whether the order would impose “irreparable harm” on the “public interest.” Florida argued that the risk of irreparable harm by enjoining its marriage license did not warrant a preliminary injunction. (They also argued that the plaintiffs were unlikely to succeed on the merits, but this is a different element of the argument). Putting aside the underlying question of the merits, a critical issue confronting the court was whether immediate relief was appropriate.  As we saw in many other states, the decision to enjoin the marriage laws led to a race to the altar before Circuit Courts stayed the order. The licenses issued during this gap period led to follow-up litigation, and several courts found it would violate Due Process to retroactively void them. In 2014, the federal district court in Brenner enjoined Florida’s law, but stayed its decision, recognizing a “substantial public interest in stable marriage laws.” Judge Hinkle recognized that there would be a public harm by abruptly disrupting Florida’s marriage law as the case is appealed to the Supreme Court.

But none of these nuances of civil procedure matter. Any governmental attorney who defended a law passed by overwhelming majorities of Floridians across the ideological spectrum will forever be viewed by Cooper and others as if they were John W. Davis, who argued on behalf of the Topeka Board of Education. Don’t forget, only one year earlier, the federal government continued to enforce the Defense of Marriage Act, which was passed by an overwhelming majority of Congress across the ideological spectrum “to express moral disapproval of homosexuality.” History is written quickly.