Lambda Legal Urges Court to Rule in Florida Case Seeking Accurate Death Certificates

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June 20, 2016
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James Merrick Smith and Hal Birchfield

Lambda Legal today announced it has filed papers with the U.S. District Court for the Northern District of Florida asking the court for a swift end to the harm and indignity that Florida same-sex spouses, like gay widowers Hal Birchfield and Paul Mocko, face when denied accurate death certificates that acknowledge they were married and recognize them as surviving spouses.

Karen Loewy, Senior Attorney for Lambda Legal, said:

Florida’s state officials are talking out of both sides of their mouths when they express their concern for the LGBT community in the wake of the tragedy in Orlando all the while refusing to take responsibility for their history of discrimination against LGBT people.
 

These officials cannot continue to pretend that recent rulings that protect the LGBT community, like the Supreme Court’s historic ruling almost one year ago today in Obergefell v. Hodges, do not apply to them. Every day that Hal, Paul, and other surviving same-sex spouses in Florida don’t have accurate death certificates for their loved ones is another day they are forced to bear the burden of discrimination and are denied the protections available to surviving different-sex spouses.

Florida’s state officials are talking out of both sides of their mouths when they express their concern for the LGBT community in the wake of the tragedy in Orlando all the while refusing to take responsibility for their history of discrimination against LGBT people.
—  Karen Loewy, Senior Attorney

Paul Mocko and Greg Patterson were together for 26 years and, in April 2014, they were married in San Francisco. Having met in San Francisco in the 1980s, the two men, like so many gay men of their generation, became HIV positive and were told to spend down their life’s assets because they were not expected to live very long. When they survived, they had to rebuild their lives from scratch.

Paul and Greg moved to Fort Lauderdale in 2009 as they prepared to take care of Greg’s mother, but the move was a struggle financially and they had to declare bankruptcy. They were living on limited income from Social Security and other benefits when Greg was diagnosed with stage four lung cancer.

In July 2014, just months after their wedding, Greg passed away. When Paul received Greg’s death certificate, it said Greg was never married and in the section for spouse, it said “none.” Having lost the love of his life and half of the couple’s joint income, Paul has experienced tremendous financial stress since Greg’s death. When he sought to get Greg’s death certificate amended, he was told that he would not be able to get it corrected without a court order, which includes a filing fee of $401 and required that he obtain legal representation.

After more than 40 years together, Hal Birchfield and James Merrick Smith traveled to New York in October 2012 and got married. Tragically, less than a year later, in September 2013, James died. Upon James’s death, Hal received a death certificate that failed to list James’s marital status as married, and failed to list Hal as his spouse. Lambda Legal successfully represented Hal in another matter last October when the Miami-Dade County Office of Property Appraisal agreed to reinstate his spousal homestead protections.

In the motion for summary judgment filed Friday, Lambda Legal argues that the state of Florida’s refusal to issue amended death certificates to Birchfield, Mocko and other surviving same sex spouses, whose marriages Florida ignored pursuant to its unconstitutional marriage ban, unless they individually obtain court orders directing the state to issue the amended certificates deprives these widows and widowers of the same protections different-sex widows and widowers receive and compounds the discrimination they have already faced at the hands of the State.

This refusal is a violation of the due process and equal protection clauses of the US Constitution.

Read the press release.