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Broward judge rules gay-marriage ban unconstitutional

Published Aug. 5, 2014

A third South Florida judge has declared Florida's gay-marriage ban unconstitutional, ruling the 2008 state amendment a violation of same-sex couples' due process and equal protection

"The ruling itself is unambiguous and so is the momentum," said Marc Solomon, national campaign director for Freedom to Marry in New York. "It's powerful to have three out of three marriage rulings in a state, and it definitely contributes to the national momentum."

Moments after Broward Circuit Judge Dale Cohen read his ruling on Monday, he immediately stayed his decision pending an appeal by Florida Attorney General Pam Bondi.

"I'm expecting an appeal because if you look at the record, she's appealed everything so far," said Brassner, having just seen Bondi lose and appeal consecutive gay-marriage rulings in Monroe and Miami-Dade counties.

A Bondi spokeswoman said Monday afternoon her office is still reviewing Cohen's decision.

"The Court is well aware of the emotionally charged environment behind this important issue. However, politics and emotionality cannot rule, it is the laws of our government that create the free society that we enjoy. The judicial role is to rule by applying the law to the facts with neutrality and impartiality," Cohen said in his ruling. "This Court believes that the issue here is not whether there is a right to same-sex marriage but instead whether there is a right to marriage from which same-sex couples can be excluded. The State of Florida cannot ignore the status and dignity afforded to opposite-sex couples, who were married out-of-state, and not extend those same rights, dignities and benefits to same-sex couples similarly situated."

Heather Brassner, a lesbian art dealer seeking to dissolve her 2002 Vermont civil union with an estranged partner, acknowledged she'll have to wait a while longer before becoming a free woman.

Brassner and her first partner, Megan Lade, entered into a civil union on July 6, 2002, in Vermont. That was two years before the first gay and lesbian couples in the United States were allowed to marry in Massachusetts, and seven years before gay marriage became legal in Vermont.

Four years ago, according to Brassner, Lade cheated on her and disappeared soon after. Brassner now is partnered with someone else and would like to marry someday, but Florida law forbids recognizing the Vermont civil union and therefore won't permit a divorce. And Vermont won't dissolve the union without a signed affidavit from Lade.

"We've been separated for four years," said Brassner, 41, of Lake Worth. "I call it 'the invisible string.' It's hard because you've moved on but there is that fear there, that they may come back and try to get you. I live in fear that she might go after me for money. In other states, she could use my name to buy property. I've been checking my credit reports. In a state where they recognize it, she has spousal rights that I don't."

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Last September, Coral Springs attorney Nancy Brodzki petitioned to get Brassner a divorce. The case randomly was assigned to Cohen, who told the attorney that before he could dissolve the civil union, he must "rule on the constitutionality" of Florida's gay marriage ban.

"I didn't know in advance how he would feel about it," Brodzki said. "Was he going to duck it?"

Last spring, Cohen instructed Brodzki to file a motion for declaratory judgment, so he could make a ruling in the case.

Brodzki began researching cases throughout the United States in which judges tossed gay marriage bans as unconstitutional.

The gay-marriage battle is being waged across the nation. According to Solomon of Freedom to Marry, LGBT advocates have won more than 30 times in federal, state and appellate courts since June 2013, when the U.S. Supreme Court ruled in favor of Edith Windsor, a lesbian widow, and threw out a key portion of the 1996 Defense of Marriage Act.

Cohen cited Windsor and other recent cases in his ruling. He said Florida's gay marriage ban "violates the due process clause of the Fourteenth Amendment" and that the states "cannot deny any person the equal protection of the laws."

In 2008, about 62 percent of Florida voters supported a constitutional amendment banning gay marriage and civil unions in the Sunshine State: "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."

On July 17, Monroe Chief Circuit Judge Luis Garcia ruled Florida's gay-marriage ban unconstitutional and that Aaron Huntsman and William Lee Jones of Key West could marry.

Eight days later, Miami-Dade Circuit Judge Sarah Zabel ruled that six same-sex couples in South Florida also had the right to marry. Those decisions are valid only in the judges' respective counties, and both rulings have been put on hold pending appeals by Bondi.

Last week, lawyers in Monroe and Miami-Dade counties asked that their cases be consolidated and appealed directly to the Florida Supreme Court. Bondi spokeswoman Jennifer Meale said Monday the attorney general's office has yet to respond.

Both those cases concern same-sex couples' right to marry. The Broward ruling is the first in Florida regarding recognition of a gay marriage or civil union performed elsewhere.

Earlier this year, about a dozen couples from throughout Florida, the ACLU of Florida and LGBT-rights group SAVE sued in federal court in Tallahassee for state recognition.

"Just as there are important protections that come with marriage, there are important protections that come with separation, including child custody and property issues, and gay and lesbian couples should have access to those protections as well," SAVE Executive Director Tony Lima said.


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