Lambda Legal Files Class Action Motion in Florida Lawsuit Seeking Accurate Death Certificates

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April 5, 2016
James Merrick Smith and Hal Birchfield

Lambda Legal filed a motion seeking class action status in its federal lawsuit on behalf Hal Birchfield and Paul Mocko, two gay widowers. The motion for class certification would extend the scope of those represented in the lawsuit to all same-sex spouses whose marriages Florida unconstitutionally disregarded at the time of their spouses’ deaths and who wish to obtain accurate death certificates.

Karen Loewy, Senior Attorney for Lambda Legal, who is handling the case alongside Senior Attorney Tara Borelli alongside co-counsel David P. Draigh and Stephanie S. Silk of White & Case LLP, said:

“This motion makes it clear that we’re fighting to fix this for all surviving same-sex spouses and their families across the state who are forced to bear the burden of discrimination and were denied the protections available to surviving different-sex spouses. Both Hal and Paul were devoted to their husbands for decades, but their stories are just two of hundreds from surviving same-sex spouses across the state of Florida who, at the worst time in their lives—the death of their spouses—had their lawful marriages and their role as spouses completely discounted on their spouse’s death certificates. It is a disgrace that, rather than treating these spouses with the respect and dignity they deserve by correcting its own unconstitutional error, the State of Florida insists that Hal and Paul and every other Florida widow and widower like them, who lost their spouses before the state’s marriage ban was struck down, must go to court before the State will issue an accurate death certificate.”

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 obtaining legal representation.

Paul Mocko said:

“It was hard enough to lose the love of my life, but when the funeral home told me that I would need to get a court order to get the State to give me a proper death certificate, that was heartbreaking. I’m sure I am not the only surviving spouse wondering where I would get the money to pay for this, so I really hope this is going to help other families, too.”

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 also received a death certificate that failed to list James’s marital status as married, and failed to list Hal as his spouse.    While most government entities have already recognized their marriage – including, with successful advocacy from Lambda Legal, the Miami-Dade County Office of Property Appraisal – Hal continues to be denied the dignity of being recognized as James’s spouse on his final vital record.

Hal Birchfield said:

“This lawsuit isn’t just about James and me, I’m standing up for everybody else who has felt the stress of the burden of correcting the state’s discrimination on their shoulders. No one else should have to deal with the humiliation and pain of not being able to have something as simple and sensitive as an accurate death certificate for their spouse.”

Last December, Lambda Legal filed a class action complaint in the U. S. District Court for the Northern District of Florida, Tallahassee Division on behalf of Hal Birchfield, Paul Mocko, and all surviving same-sex spouses whose spouses died before Florida’s marriage ban was struck down and whose marriages were not recognized by the state of Florida on their spouses’ death certificates. The complaint says the state of Florida’s refusal to issue amended death certificates to Birchfield, Mocko, and other surviving same-sex spouses 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 U.S. Constitution. In light of the widespread harm of this discrimination, late yesterday, Lambda Legal filed a motion for class certification in order to seek relief for Birchfield, Mocko and similarly situated surviving same-sex spouses.

Read the motion.

For more on the case.