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Surprising Development in Florida Marriage Equality Case

Posted on: December 3rd, 2014 by Art Leonard No Comments

When U.S. District Judge Robert Hinkle ruled on August 21 in Brenner v. Armstrong and Grimsley v. Armstrong that Florida’s ban on same-sex marriage was unconstitutional, he stayed his preliminary injunction until January 5, 2015, to give the state a chance to appeal to the 11th Circuit.  He indicated that if the state wanted to have the decision stayed longer until the Court of Appeals could decide on the merits, it should ask the Court of Appeals for a longer stay.  The state filed its notice of appeal, accompanied by a Motion to Extend Stay of Preliminary Injunction Pending Appeal and for Expedited Treatment of This Motion.”

This afternoon, December 3, a three-judge panel of the 11th Circuit issued a terse order, as follows:  “Appellants’ request for expedited review of the Motion is granted.  Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion.  The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.”

This means, implicitly, that the 11th Circuit panel has concluded that the factors normally considered in deciding whether to stay a ruling pending appeal do not balance out in support of the state’s motion.  And, of course, the first and most important factor is whether the Appellant is likely to prevail on the merits of its appeal.  They would also consider the harms to the plaintiffs if the district court’s order is stayed further, and the harms to the state if the injunction is allowed to go into effect.  And, of course, they would ask whether such harms, if any, are irreparable by after-the-fact money damages.  Finally, they would consider the public interest in granting or denying a stay.  The district court had more or less resolved these questions against the state, but was willing to give the state the benefit of a chance to get an appellate panel to consider them as well before the decision goes into effect.  This means that unless the state is able to get a stay issued by a “higher authority” — the U.S. Supreme Court — marriage equality would go into effect in Florida on January 6, 2015, without a ruling on the merits by the 11th Circuit.  This seems like a rather strong signal by the 11th Circuit about how they think a merits ruling from a panel of their court would turn out.

On the other hand, this may be a high-stakes game of “chicken” being played by the 11th Circuit panel.  They may be kicking the question of a stay to the Supreme Court (assuming the state will petition for one, which would seem consistent with Attorney General Bondi’s position on these cases) on the theory that the national momentum has been going in one direction, with the notable exception of the 6th Circuit, and that presentation of a stay application to the Supreme Court coming out of a circuit that has not yet ruled on the merits of marriage equality will require the Court to show its hand, perhaps a bit prematurely, in light of the pending petitions for certiorari from the 6th Circuit and Louisiana decisions.

We are now running into interesting timing issues in the national campaign for marriage equality.  The Florida stay expires at the end of business on January 5.  On January 9, the 5th Circuit is scheduled to hear oral arguments in the Texas and Louisiana cases and, perhaps, the Mississippi case as well, since the state has noticed its appeal there.  Later in January, one expects the Supreme Court will be considering in conference the certiorari petitions from the 6th Circuit states (Ohio, Michigan, Kentucky, Tennessee) and Louisiana (petition filed by Lambda Legal on behalf of the plaintiffs).  If the Supreme Court grants cert in one or more cases, there is the question whether the cases can be argued and decided during this term of the Court (by the end of June 2015), or whether by the time the Court makes a cert decision the argument docket for this term will be filled and the cases will be scheduled for argument in the fall?  If the former eventuates, then the 5th and 11th (and most likely the 8th) Circuits may never have to rule on marriage equality, because they would probably put all appeals on hold while waiting for a ruling by the Supreme Court.

If the Supreme Court refuses to stay the Florida injunction, that would send a clear signal to the district judges in Alabama and Georgia who are now sitting on summary judgment motions in marriage equality cases, that if they rule in favor of plaintiffs, there is no need to stay their rulings, because the 11th Circuit and the Supreme Court are unlikely to stay them.  So marriage equality might spread in the 11th Circuit would ever achieving a ruling from the Court of Appeals.  (Wishful thinking?  It’s a pretty conservative circuit.)  And if the Supreme Court were to grant the Louisiana cert petition, the 5th Circuit would probably refrain from ruling in the cases pending there.

Perhaps the worst scenario for getting real progress expeditiously would be if the Supreme Court doesn’t grant a cert petition until too late to schedule arguments this spring.  Then we all play the waiting game until next fall and might not see a final marriage equality ruling until sometime next winter, most likely early in 2016.  And it is possible that none of the remaining circuits would rule on pending appeals so long as a case is scheduled for argument before the Supreme Court.

Florida Appeals Court Calls for Florida Supreme Court to Decide Marriage Equality Question

Posted on: August 27th, 2014 by Art Leonard No Comments

In a highly unusual move, most of the judges on the Florida Second District Court of Appeal have agreed to certify to the state’s Supreme Court the question whether a Florida trial court has jurisdiction over a divorce proceeding of a same-sex couple who were married in another state.  A panel of the court had rejected a request by the parties to refer the case to the Supreme Court on June 26, but the parties then asked for the entire court (the “en banc” court in legal jargon) to consider their request.  Thirteen judges participated, voting 10-3 in favor of certifying the case, in a ruling issued on August 27 in Shaw v. Shaw, Case No. 2D14-2384.

Mariama M. Changamire Shaw and Keiba Lynn Shaw were married in Massachusetts in 2010 and thereafter moved to Florida.  Their marriage broke down.  They separated in 2013, and Mariama filed a divorce action in Hillsborough County.  The women negotiated a voluntary settlement agreement and were looking to have the court incorporate their agreement into a final judgment dissolving their marriage, but the Hillsborough circuit court, on its own motion, decided that it did not have jurisdiction over the case.

The circuit court relied on Florida’s Marriage Amendment, which prohibits recognition of same-sex marriages, and a similar statutory prohibition, and took the position that it could not dissolve a marriage that it was prohibited from recognizing.  The court said that it did not have “jurisdiction to dissolve that which does not exist under law.”  The state’s Attorney General, Pam Bondi, had been notified about this case, but her office did not participate.

Mariama filed an appeal from the ruling, and Keiba filed a cross appeal, both asking for the same thing: that the 2nd District Court of Appeal reverse the jurisdictional ruling and direct the circuit court to decide their divorce case.  However, seeking to avoid delay and noting the pendency of marriage equality cases, including divorce cases, in other Florida counties, they suggested that the court of appeal pass the case up to the Supreme Court for a quicker resolution that would have statewide effect.

The ten-judge majority, in a group opinion  not attributed to any of the individual judges, noted the four prior Florida circuit court marriage equality decisions, including one from another county involving a divorce, some of which have already been appealed to the 3rd District Court of Appeal, and considered that the issues raised by this case have statewide importance.  This conclusion was reinforced in a motion filed by the Family Law Section of the Florida Bar and the Florida Chapter of the American Academy of Matrimonial Lawyers, seeking to participate in the case as amicus curiae because of the importance of this case beyond the immediate parties.  The majority of the 2nd District court concluded that “the order on appeal requires immediate resolution by the Florida Supreme Court because the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”

The majority, contrary to the dissent, stated that the case did not merely raise the issue whether the Full Faith and Credit Clause of the U.S. Constitution requires Florida courts to recognize same-sex out of state marriages of Florida residents for purposes of divorce.  Taking note of the range of trial court decisions around the state that are pending on review, the court said that the issue is “whether Florida’s ban on same-sex marriage and the prohibition on recognizing such marriages unconstitutionally limits various constitutional guarantees including full faith and credit, access to courts, equal protection, and the right to travel.”  Although the circuit court’s decision did not give any sort of thorough analysis to these questions, relying solely on the state constitutional and statutory prohibition on recognizing such marriages as conclusive on the jurisdictional question, the majority observed that the broader constitutional questions had been briefed and argued by the parties and, in light of the contrary decisions by several other circuit courts holding the ban unconstitutional under the 14th Amendment of the U.S. Constitution, there was an urgent question of constitutional magnitude for the state’s highest court.

“Resolution of the constitutional questions will no doubt impact far more individuals than the two involved here,” wrote the court.  “And there can be little doubt that until the constitutional questions are finally resolved by the Florida Supreme Court or the United States Supreme Court, there will be a great impact on the proper administration of justice in Florida.  Similarly, in light of those questions, it seems clear that this a matter of great public importance.”

Judge Chris Altenbernd penned the dissent for himself and two other judges, rejecting the notion that this was a matter that should be passed directly to the state’s supreme court.  “Although this case is of importance to these parties,” he wrote, “I cannot agree that this case is a proper subject for a pass through.”  He pointed out that the circuit court’s order “contains no discussion of any constitutional argument and no express constitutional ruling.  Most important, it has no discussion of the constitutionality of these provisions under the Full Faith and Credit Clause of the U.S. Constitution.”  Both parties had appealed the order, which means, he wrote, “Apparently, no party intends to argue that the circuit court correctly dismissed this dissolution proceeding.  The Attorney General has made no appearance in this case, and we do not know whether the Attorney General will argue that Florida law constitutionally prohibits these Florida residents from obtaining a divorce.”

In short, Altenbernd contended, this was an appropriate case for the district court of appeal to hear arguments and render a ruling.  As far as he was concerned, the “dispositive issue in this case is whether Florida, under the Full Faith and Credit Clause of the U.S. Constitution, must give credit to these lawful out-of-state marriages for the purpose of dissolution.  Presumably, this issue is comparable to the question of whether, after January 1, 1968, Florida was required to give such credit to lawful, out-of-state common law marriages.”  He pointed out that when that question arose, it was decided consistently by several of the state’s district courts of appeal without any need to refer the question directly to the Supreme Court.

“Given that same-sex marriages are a recent development in other states,” he continued, “I am not convinced that Florida’s courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution.  I cannot certify that this order will have ‘a great effect on the proper administration of justice throughout the state’ requiring immediate review in the supreme court.”  He stated his confidence that the court of appeal could “ably consider this appeal and reach a proper resolution,” and pointed out that such a decision would have statewide effect “unless another district court disagrees with us” and might never require the attention of the Supreme Court.

Nowhere mentioned in this decision is the federal Defense of Marriage Act (DOMA), which provides in Section 2 that no state is required to give full faith and credit to same-sex marriages performed in other states.  This is the section of DOMA that was not addressed by the U.S. Supreme Court last year in U.S. v. Windsor, although there is serious debate whether Congress had authority to enact this exception to the full faith and credit requirement stated in the Constitution.  So far, DOMA Section 2 has generally not been mentioned or given any weight in the many federal district court rulings over the past year in marriage recognition cases.  The courts have, with one exception from Tennessee, ruled in those cases that failing to recognize such marriages violates the Equal Protection Clause of the 14th Amendment.

Judge Altenbernd suggested that the court could adopt an interpretation of the state’s Marriage Amendment under which Florida courts could entertain divorce petitions, on the theory that dissolving same-sex marriages is not inconsistent with refusing to recognize them.  Such a ruling, based solely on an interpretation of the Florida Constitution, would not present any federal question and would not be reviewable by the U.S. Supreme Court.  It would finally resolve the problem of “wedlock” for married same-sex couples living in Florida.

However, such a ruling would leave unresolved the question pending before the 3rd District Court of Appeal in several other cases: whether same-sex couples have a constitutional right to marry in Florida.  That question requires deciding whether the Florida Marriage Amendment violates the federal Constitution.

If the Florida courts were to decide that the divorce jurisdiction issue cannot be decided without analyzing the 14th Amendment or other federal constitutional provisions, their decisions would be subject to appeal to the U.S. Supreme Court and probably stayed pending appeal.  Thus, it is possible that a Florida Supreme Court decision in this divorce case would not finally settle the question.

Mariama is represented in this case by Brett R. Rahall and Ellen E. Ware of Tampa.  Keiba is represented by Deborah L. Thomson, Lara G. Davis and Adam B. Cordover, all of Tampa.

Another Marriage Equality Ruling from Florida – Albeit a Narrow One

Posted on: August 6th, 2014 by Art Leonard No Comments

Palm Beach County Circuit Judge Diana Lewis ruled on August 5 that the Florida ban on recognizing same-sex marriages was unconstitutional as applied to the case pending before her, in which a Pennsylvania man is seeking to be appointed the Personal Representative in Florida for his deceased husband’s estate.  Lewis found that there was no rational basis to deny the appointment.

Frank Bangor and Jason Simpson were married in Delaware in 2013.  Bangor passed away on March 15, 2014.  The men resided in Pennsylvania, which did not recognize their marriage at the time of Bangor’s death.  A few months later, however, a federal judge declared the Pennsylvania same-sex marriage ban unconstitutional and the state decided not to appeal, so, theoretically, Pennsylvania would recognize Simpson as Bangor’s surviving spouse.  Bangor left a will, designating Simpson his executor and sole beneficiary.  At his death, Bangor owned some property in Florida, and in the will he appointed Simpson as his Personal Representative to deal with the Florida property.

Such an appointment requires confirmation by the Florida probate court in the county where the property is located.  Under Florida law, personal representatives of out-of-state property owners must be Florida residents unless they are a surviving spouse or close relative of the deceased.  Thus, Simpson’s status as a surviving spouse of Bangor is a prerequisite for his appointment as Personal Representative.

This should be a routine appointment.  The problem is that Florida has a constitutional amendment and statutes that absolutely forbid the recognition of same-sex marriages for any purpose of state law.  Judge Lewis concluded that she could not confirm the appointment of Mr. Simpson without first considering the validity of the Florida law.  Simpson was not mounting a facial attack on the constitutionality of the Florida law in this case.  Rather, he was arguing that it was unconstitutional as applied to his situation.

Treating this as an “as-applied” challenge, Judge Lewis found that there was no rational basis for refusing him the appointment.  She could find no policy justification for refusing to recognize this marriage.  Taking note of the thirteen recent federal court rulings striking down state bans on recognizing out-of-state same-sex marriages, and the recent rulings by Florida trial court judges holding the Florida marriage ban unconstitutional, Judge Lewis found the weight of authority supporting Simpson’s application.  Of course, U.S. v. Windsor factored into her decision as well, since Windsor was a marriage recognition case, and the Supreme Court found that Congress’s refusal to let the federal government recognize lawfully-contracted same-sex marriages violated the 5th Amendment’s Due Process and Equal Protection requirements.

She concluded that Simpson was entitled to serve as Personal Representative of his deceased husband.  She noted that due to the decision in Whitewood v. Wolf by the federal court in Pennsylvania, Simpson’s domicile state recognizes his marriage.  She had notified the Attorney General’s office that she would be considering the constitutionality of the Florida marriage ban, but that office did not submit a brief or make any arguments, and she found that the state had not offered, “and this Court cannot find, any compelling state interest in denying the Decedent’s choice for his Personal Representative to serve in the state of Florida.”  She characterized such appointments as “routine” without any inquiry into the nature of the marriage, and found that none of the policy arguments presented in other marriage recognition cases had any application to this case.  She found no justification to deny Simpson the appointment, and appended to her decision signed copies of the necessary forms, making the appointment immediate with no mention of any stay.

Since the action was uncontested, there is no potential appellant, and Judge Lewis apparently so no reason to delay the administration of the estate by staying her opinion pending the outcome of appeals in other marriage equality cases.  The state is presently appealing two rulings from Monroe and Miami-Dade counties holding the marriage ban unconstitutional.  A third such ruling, from Broward County, was in private litigation to which the state is not a party, but the judge stayed his decision pending the appeals in the other cases.  Other marriage equality challenges are also pending in Florida state and federal courts.

A Third Florida Trial Court Rules in Favor of Marriage Equality in a Civil Union Recognition Case

Posted on: August 4th, 2014 by Art Leonard No Comments

Broward County Circuit Judge Dale Cohen has ruled that Florida must recognize a Vermont civil union for purposes of dissolving it so that one of the partners, a long-time Florida resident, can marry her girlfriend out of state.  The August 4 ruling in Brassner v. Lade, Case No. 13-012058(37), is the 30th consecutive ruling for marriage equality since a federal judge in Utah ruled last December that Utah’s ban on same-sex marriage violated the 14th Amendment.  Judge Cohen’s decision was also the third in Florida within a matter of weeks, following recent decisions in Miami-Dade County and Monroe County.  The earlier decisions, however, solely ruled on whether a same-sex couple was entitled to marry in Florida.  Judge Cohen was the first to rule that an out-of-state civil union must be recognized by Florida such that the state court can dissolve it.  The state is not a party to the case.  Judge Cohen stayed his decision “pending the outcome of expected appeals on similar issues recently ruled on by courts in Monroe and Miami-Dade Counties,” for reasons that become obvious when one considers the facts of the case.

In 2008, Florida citizens voted to amend their constitution to include the following provision: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”  Judge Cohen, evidently considering a Vermont civil union to be a “substantial equivalent” of a marriage, referred interchangeably through his opinion to marriages and civil unions, the main issue confronting him being whether this constitutional provision prevented him from issuing an order that would dissolve the petitioner’s civil union with the respondent.

The petitioner, Heather Brassner, who has lived in Florida for fourteen years, formed a civil union in Vermont with the respondent, Megan E. Lade, in 2002.  The partners split up thereafter, and Brassner has lost touch with Lade.  She now has a new same-sex partner, whom she would like to marry, but she needs to get the civil union dissolved first, and would have to go out of state to get married because of the Florida amendment, as the prior two court rulings have been stayed pending appeal.

Brassner filed a petition seeking an order from the Broward Circuit Court dissolving her civil union.  Judge Cohen concluded that he could not dissolve a relationship that was not recognized under state law, so he requested briefing on the question whether the Florida marriage amendment is constitutional.  At this point, the weight of accumulated precedents supplies a simple answer.  As Judge Cohen concludes, looking to arguments made in other cases to determine what the state would argue if it were a party in this case, there is no rational basis for the state of Florida to deny recognition to Brassner’s civil union, where doing so would prevent her from getting married to her partner.

Judge Cohen resolved the Due Process analysis by reference to the many cases that have held that marriage equality claims invoke a fundamental right, and that there is no way that the arguments typically made by states in defense of their marriage bans can meeting the compelling interest test.  On the Equal Protection analysis, he found himself bound by existing state precedent to treat this as a rational basis case, and concluded, as have many courts over the past eight months, that marriage bans also flunk the rational basis test.

“By failing to recognize Petitioner’s out-of-state union her constitutional right to due process and equal protection under the law is violated,” wrote Judge Cohen.  “Florida’s refusal to recognize Petitioner’s union is tantamount to banning her from marrying someone of the same sex.  Accordingly, Florida’s ban on same-sex marriage and refusal to recognize out-of-state same-sex marriages violates Petitioner’s fundamental right to marry under the due process clause and discriminates based on sexual orientation, which violates the equal protection clause.”

Cohen stressed that his ruling was “the result of legal analysis of the laws of the federal government and the State of Florida,” not an expression of politics or “emotionality.”  He insisted that “equality is the cornerstone of our nation.  In pursuit of that ideal comes the often-uncomfortable feeling of change.  We have learned that over time change becomes a part of what this great nation is about.”

“The tides are turning on the issue of same-sex marriage throughout this country,” he wrote.  “Since the 2013 ruling of the Supreme Court in Windsor, there have been numerous decisions of courts throughout this country and none have found that same-sex marriage bans pass constitutional muster.”

Judge Cohen granted the Petitioner’s motion for a declaratory judgment, declared that the state’s failure to recognize legal out of state civil unions violates the 14th Amendment, and also that the Marriage Amendment and a parallel state statute also violate the 14th Amendment.

Brassner hired a private investigator to try to find Lade, but the search was fruitless.  Thus, there is nobody at present to appeal Judge Cohen’s ruling, since the state is not a party and Lade is nowhere to be found.  Brassner’s petition to the court is essentially unopposed.  This is why Cohen’s stay is premised on the outcome of appeals in the other marriage equality cases.


A Second Florida Trial Judge Rules for Marriage Equality

Posted on: July 26th, 2014 by Art Leonard No Comments

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.


Key West (Florida) Trial Judge Rules for Marriage Equality

Posted on: July 17th, 2014 by Art Leonard 1 Comment

A state trial judge in Key West, Florida, has ruled that the state’s ban on same-sex marriage violates the 14th Amendment of the U.S. Constitution. Judge Luis M. Garcia ruled on July 17 that Monroe County Clerk Amy Heavilin must issue a marriage license to Aaron R. Huntsman and William Lee Jones, who have been a couple for eleven years, on July 22. Garcia wrote that he was giving the clerk until July 22 “in consideration of the Clerk of Court’s anticipated rise in activity, and preparation thereof.”

Attorney General Pamela Jo Bondi, evidently anticipating the ruling, immediately filed a notice that she was appealing the ruling to the Florida 3rd District Court of Appeal. Although the lawsuit was originally filed against Heavilin, the state intervened as a defendant and will be handling the appeal.

The plaintiffs and the defendants agreed that there were no factual issues that required a trial, authorizing the court to issue a ruling on the plaintiff’s motion for summary judgment. The court had allowed two organizations to file legal memorandums defending Florida’s constitutional and statutory same-sex marriage ban, and they had argued that a trial was needed, but Judge Garcia ruled that only the defendants had standing to make that argument.

The state’s first argument was that the plaintiffs’ constitutional claim was blocked by the Supreme Court’s 1972 ruling in Baker v. Nelson, a Minnesota marriage equality case, in which the Court dismissed the appeal, stating that it did not present a “substantial federal question.” Garcia pointed out that after Romer v. Evans, Lawrence v. Texas and United States v. Windsor, he concluded that Baker “is no longer binding and the issue of same-sex marriage has now become a Federal question.” He cited the 10th Circuit’s recent ruling in the Utah marriage case, as well as trial court rulings from Pennsylvania, Oregon, Oklahoma, Michigan and Virginia in support of this conclusion.

Moving to the plaintiffs’ Due Process argument, he found that Supreme Court rulings treat the right to marry as an individual right, and, refuting the state’s argument that plaintiffs were seeking the establishment of a “new” constitutional right, wrote, “The right these plaintiffs seek is not a new right, but is a right that these individuals have always been guaranteed by the United States Constitution. Societal norms and traditions have kept same-sex couples from marrying, like it kept women from voting until 1920 and forbid interracial marriage until 1967.”
Garcia concluded that the fundamental right to marry “encompasses the right to marry a person of one’s own sex,” and thus the Florida marriage amendment and statute are unconstitutional.

Turning to the plaintiffs’ Equal Protection argument, Judge Garcia noted that in U.S. v. Windsor the Supreme Court had ruled that unconstitutional animus was behind the Defense of Marriage Act, and found that the same analysis would lead to the same result regarding Florida’s marriage ban. In Windsor, Justice Anthony Kennedy wrote that “the purpose and effect of the law was to impose a disadvantage, a separate status, and so a stigma upon all who enter into a same sex marriage.” “Similarly,” wrote Judge Garcia, “the purpose and practical effect of [the Florida Marriage Protection Act] is that it creates a separate status for same-sex couples and imposes a disadvantage and stigma by not being recognized under Florida law.”

He also rejected the argument that there is “no evidence of animus towards homosexuals by the proponents of the Florida Marriage Protection Amendment,” finding that “there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae.” Here the opponents of same-sex marriage hurt their own case by their outrageous assertions. “The Amici Curiae’s memorandum paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long-term relationships or of raising children,” and thus it was rational, they argued, for Florida’s voters to “minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman.” Garcia concluded that “animus has been established.”

He also concluded that the Equal Protection claim should be decided using a “heightened rational basis test,” and that the marriage ban could not survive such a test. Indeed, he wrote, “Only the Amici Curiae has attempted to put forward a rational basis for the unequal treatment of a segment of our society,” and he found their arguments unavailing. Their first basis was to argue that the law “memorialized millennia of history and tradition,” but, as Justice Scalia had pointed out in his dissent in Lawrence v. Texas, “Preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.” The other argument was the ban somehow “encourages procreation” among heterosexuals, but Garcia found that there was nothing in the marriage ban “that encourages heterosexual couples to procreate.” The third argument was that the law “encourages a better environment for the rearing of children,” but, Garcia pointed out, quoting from an Ohio marriage recognition ruling from last year, “The only effect the marriage recognition bans have on children’s well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married.”

Unfortunately, however, the only plaintiffs in this case are two men who wish to be married, and Garcia found that they did not have standing to challenge the Florida statute that bans recognizing out-of-state same-sex marriages, so he limited his ruling to the right to marry. Of course there are several other marriage equality cases pending in Florida courts, both state and federal, and plenty of them have married couples seeking recognition, so that point will eventually be covered in another case.

“The court is aware that the majority of voters oppose same-sex marriage,” concluded Judge Garcia, “but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless, even at the cost of offending the majority. . . All laws passed whether by the legislature or by popular support must pass the scrutiny of the United States Constitution. To do otherwise diminishes the Constitution to just a historical piece of paper.”

The plaintiffs are represented by Florida attorneys Elena Vigil-Farinas, Bernadette Restivo and Thomas L. Hampton.