Judge Strikes Down
Same-Sex Marriage Ban
By Dara Kam The News Service Of Florida
Mirroring court rulings in other states, a Monroe County judge on Thursday struck down Florida’s ban on same-sex marriage, ruling that the voter-approved prohibition violates due process and U.S. constitutional protections against discrimination.
Florida Attorney General Pam Bondi immediately notified Circuit Judge Luis Garcia she intends to appeal the ruling, effectively putting it on hold. Garcia’s order would only apply in Monroe County.
Garcia ruled in favor of Aaron Huntsman and William Lee Jones, two Key West bartenders who sued Monroe County Clerk of Court Amy Heavilin for refusing to grant them a marriage license. Six gay couples filed a similar lawsuit in Miami-Dade County but a judge has not yet ruled in that case.
In his 14-page ruling, Garcia compared the politically charged issue of same-sex marriage with previous civil-rights struggles.
“This court is aware that the majority of voters oppose same-sex marriage, 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,” Garcia wrote in his 14-page order. “Whether it’s the NRA protecting our right to bear arms when the City of Chicago attempted to ban handguns within its city limits; or when Nazi supremacists won the right to march in Skokie, Illinois, a predominantly Jewish neighborhood; or when a black woman wanted to marry a white man in Virginia; or when black children wanted to go an all-white school, the Constitution guarantees and protects ALL of its citizens from government interference with those rights.”
The same scrutiny applies to all laws, whether passed by the Legislature or by popular support like the state constitutional amendment approved by Florida voters in 2008 that required marriage to be between a man and a woman, Garcia wrote.
“…To do otherwise diminishes the Constitution to just a historical piece of paper,” Garcia, appointed by former Republican Gov. Jeb Bush, wrote.
Garcia’s order, the first in a series of lawsuits involving Florida’s same-sex marriage ban, gave Heavilin until Tuesday to begin issuing marriage licenses to same-sex couples. But Bondi’s appeal means that Heavilin won’t be handing out licenses, the clerk’s lawyer Ron Saunders said in a telephone call Thursday.
John Stemberger, president of the Florida Family Policy Council and author of the 2008 constitutional amendment approved by nearly 62 percent of voters, blasted the judge’s decision as “entirely illegitimate.”
“He basically inserted his own political views over the rule of law. He disrespected and disenfranchised 5 million voters,” Stemberger said.
Garcia based his ruling in part on a landmark decision last summer from a split U.S. Supreme Court, which overturned the federal “Defense of Marriage Act” on the basis that it violated due-process rights. That ruling spurred a flurry of lawsuits across the country challenging state bans. Florida is one of more than two dozen states with amendments in the state constitution that ban same-sex marriage.
The lawsuits filed in Florida echo challenges in the federal cases and argue that the state law denies gay couples and their families “the fundamental rights, dignity and equality guaranteed to all persons by the U.S. Constitution.” Separate lawsuits filed in federal court contend that the state is violating the rights of same-sex couples married in other parts of the country by not recognizing the unions.
Garcia’s ruling dovetails with more than two dozen court decisions across the country and likely paves the way for a Florida Supreme Court showdown over the “Florida Marriage Protection” amendment.
“We’re ecstatic with this ruling,” Bernadette Restivo, the lawyer representing Huntsman and Jones, said. “We have felt all along that this decision for Florida needed to come out of the Florida Keys. We’re obviously a community known for our acceptance and our tolerance and our diversity and it makes sense that the Florida Keys would be leading the way.”
Those on both sides of the issue are looking to higher courts for a decision.
“Ultimately, the U.S. Supreme Court has to decide this matter. They’re either going to determine that states have the right to define marriage or … they could find some new-found right for same-sex couples to be married under the equal protection clause,” Stemberger, a lawyer, said.