Just days after Monroe County Circuit Judge Luis M. Garcia ruled that Florida’s constitutional and statutory bans on same-sex marriage violate the 14th Amendment, a second Florida trial judge, Sarah Zabel of Miami-Dade County, reached the same conclusion in Pareto v. Ruvin and State of Florida, No. 14-1661 CA 24, announced on July 25. As in the earlier case, Florida Attorney General Pam Bondi immediately responded by filing a notice of appeal, but Judge Zabel had anticipated this move and stayed her own decision “pending the outcome of the expected appeals.”
The Miami-Dade case was filed by attorneys from the law firm of Carlton Fields Jorden Burt, Elizabeth F. Schwartz and Mary B. Meeks and the Nation Center for Lesbian Rights earlier this year on behalf of six same-sex couples who went to the county clerk’s office and were denied marriage licenses. Joining with the plaintiff couples was co-plaintiff Equality Florida Institute, representing its members who are also seeking the right to marry. As none of the named plaintiffs had already been married elsewhere, the lawsuit did not specifically target Florida’s ban on recognition of out-of-state same-sex marriages, and Judge Zabel did not address that ban.
The case was originally filed only against Miami-Dade County Clerk of the Courts Harvey Rubin, but the state intervened to defend the statute, and Clerk Ruvin actually took no position as to its constitutionality. Indeed, some local officials supported the plaintiffs, with the City of Miami Beach joining with the City of Orlando in filing an amicus brief and participating in oral argument. In addition to the state, several amicus organizations defended the statute, having a particular interest because they had worked to pass Florida’s constitutional ban on same-sex marriage in 2008.
Although accounts of judges’ decisions in marriage equality cases are coming to take on a repetitious character, each judge brings his or her own style to the task, and Judge Zabel took the occasion to write a thorough decision that falls solidly within the mainstream of the two dozen rulings that have been issued in support of marriage equality since last June’s Supreme Court decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor. In the course of her opinion, Zabel offered several pointed and quotable comments, although much of her decision consisted of pertinent quotations from those two dozen prior decisions.
Confronting the state’s argument that the court lacked jurisdiction over this dispute because the anti-marriage amendment was “enacted via a citizen-led ballot initiative” and the court “must respect the voters’ policy preferences,” Zabel responded, “The United States Constitution would be meaningless if its principles were not shielded from the will of the majority. . . Accordingly, the ‘will of the voters’ does not immunize Article 1, Section 27 of Florida’s Constitution from judicial review into whether it comports with the commands of the U.S. Constitution. To hold otherwise would sanction ‘the tyranny of the majority.'”
Zabel also quickly dispatched the state’s argument that this lawsuit was precluded by the U.S. Supreme Court’s 1972 rejection of a marriage equality appeal from Minnesota, finding that in the intervening forty years the Court’s statement that same-sex marriage did not present a “substantial federal question” was no longer accurate.
Turning first to the challenge under the Due Process Clause, Judge Zabel sided with those courts that have rejected the argument that plaintiffs are seeking a “new right of same-sex marriage.” “When analyzing the scope of the fundamental right to marry (or any fundamental right),” she wrote, “it would be both circular and insincere to use the group being denied a right to define the right itself.” She continued, “Although this right has always been theirs, it is only recently that historical blinders have begun to fall so that we have been able to recognize that the right belongs to them as well. Simply put, fundamental rights belong to everyone. All individuals have a fundamental right to marry. The inquiry is not whether there is a right to same-sex marriage, but whether same-sex couples can be excluded from the right to marriage.”
Having decided that a fundamental right is at stake, Judge Zabel determined that only a compelling state interest could justify abridging that right, and none had been advanced by the state of Florida. This is not very surprising, since the state’s argument was that no fundamental right was at stake and this was an ordinary rational basis case. Lacking arguments from the state, Zabel looked to the arguments by the amicus organizations, which raised the same tired arguments that have been rejected in every other marriage equality case this year. She found them no more compelling than any other court had done.
In light of past Florida litigation over gay parenting in the context of adopt, she had a precedential state decision to quote, Florida Department of Children & Families (Adoption of XXG), 45 So. 3d 79 (Fla. 3d DCA 2010), in which the Florida 3rd District Court of Appeal summarized the expert testimony about gay parenting. That court concluded, after discussing the various reports and studies produced in evidence, “These reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children,” and “this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise.” Given that precedent, the argument of amicus parties in this case that the state should withhold marriage rights from same-sex couples to advance its compelling interest in having children raised in the best setting was a non-starter.
Furthermore, noted Zabel, gay people can have children without getting married and are doing so in large numbers, so “the issue of same-sex marriage is inapposite to the purported goal of preventing same-sex couples from being parents. Rather, the marriage bans merely prevent same-sex couples from having their already existent families and partnerships recognized in the same manner as opposite-sex couples.” She pointed out that denying marriage to same-sex couples with children “actually harm the amici’s stated objective of promoting the best interest of children.” She was similar dismissive of the idea that the procreative capacity of heterosexual couples provided any reason for treating same-sex couples differently, since Florida was perfectly willing to let such couples marry even if they could not or did not desire to procreate.
One issue raised by amici in this case had not been addressed in prior marriage equality litigation. Amici in this case “insist these laws prevent the spread of HIV and certain cancers that are more prevalent among gay men,” Zabel noted. “They assert that allowing same-sex marriage will de-stigmatize homosexual conduct, and thereby encourage sexual practices which help spread those diseases.” Zabel was not convinced. “However,” she wrote, it is absurd to suggest that a marriage law can combat a medical disease. The alleged connection between banning same-sex marriage and affecting homosexuals’ intimate conduct is not narrowly tailored to the result it seeks to accomplish, and it is too indirect and theoretical to pass even the rational basis test.”
Indeed, Zabel ultimately concluded, the marriage ban had to fall even under the rational basis test. She pointed out that denying same-sex couples the right to marry had a harmful impact on them and their children, listing a variety of ways that it imposed disadvantages on them. “Without access to these and other rights,” she wrote, “homosexuals are made second-class citizens,” and, quoting the ancient dissent of the first Justice John Marshall Harlan in Plessy v. Ferguson (1896), “our Constitution neither knows nor tolerates classes among citizens.”
Turning to the equal protection challenge, Zabel pointed out that because a fundamental right was being categorically denied to gay people, equal protection also required strict scrutiny, but even under a rational basis approach the marriage ban was unconstitutional. Zabel was constrained in this area by a past Florida Supreme Court decision that had rejected any form of heightened scrutiny for sexual orientation discrimination cases, but this did not prove a problem because she had already found a due process violation and she had already concluded that there was no rational basis to deny same-sex couples the right to marry.
Justice Zabel concluded with a rhetorical flourish about the historic struggles to achieve equality in the U.S. for people of color and women. “Notably absent from this protracted march towards social justice was any progress for the gay, lesbian, bisexual, and transgender community until quite recently,” she wrote. “However, as evidenced by the avalanche of court decisions unanimously favoring marriage equality, the dam that was denying justice on this front has been broken. The Court, nonetheless, recognizes that its decision today is divisive and will cause some Floridians great discomfort. This decision, though, ‘is not made in defiance of the great people of [Florida] or the [Florida] Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution,” she concluded, adapting language from the Texas marriage equality decision issued earlier this year. “The journey of our Nation towards becoming ‘a more perfect Union’ does not stop at any particular generation; it is instead a fluid process through every generation. The Court, therefore, foresees a day when the term ‘same-sex marriage’ is viewed in the same absurd vein as ‘separate but equal’ and is thus forsaken and supplanted by ordinary ‘marriage.'”
This case is one of several pending in state and federal courts in Florida. The decision will be appealed to the state’s intermediate court of appeals, but given the speed with which things are moving on the marriage equality front, it may become irrelevant if it does not move more quickly than Florida state court appeals tend to move. The U.S. Court of Appeals for the 10th Circuit has issued two affirmative marriage equality decisions in cases from Utah and Oklahoma, the 4th Circuit is expected to rule soon in a case from Virginia, and the 6th, 7th, and 9th Circuits are hearing arguments in cases from numerous states over the next six weeks. Thus, the likelihood that this issue will end up in the U.S. Supreme Court this term, resulting in a ruling by June 2015, makes it likely that the Florida marriage challenges will be resolved by default after a U.S. Supreme Court ruling from one of those cases that are further along, rather than by merits rulings from the Florida Supreme Court or the federal 11th Circuit Court of Appeals on a Florida appeal.
That being the case, one wonders why Attorney General Bondi and her staff would but any substantial resources into appealing these rulings.