1. Florida Politics

In sweeping ruling, another Florida judge rules against gay marriage ban

Published Jul. 26, 2014

A Miami-Dade judge declared Florida's gay-marriage ban unconstitutional on Friday, in a sweeping ruling that cut a wide swath through American history — from the Declaration of Independence to slavery to Jim Crow to equality for women — as much as it drew from recent Supreme Court decisions.

Preventing same-sex couples from marrying, Circuit Judge Sarah Zabel said, "serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society."

Zabel became the second South Florida judge in eight days to declare that Florida's constitutional amendment banning gay marriage violates the U.S. Constitution's equal protection and due process clauses.

Last week, a Keys judge also ruled the ban unconstitutional. That ruling was stayed when the state attorney general's office appealed, and Zabel stayed her own order Friday pending an appeal, saying she understood her decision would not be the "final word" on the issue.

In the Miami case, six same-sex couples in January sued Miami-Dade County Clerk Harvey Ruvin for marriage licenses.

"I'm excited. I'm thrilled. My phone has blown up with texts and emails of congratulations. I'm elated," one of the plaintiffs, Jorge Isaias Diaz, said Friday evening. "We came into this knowing it probably would go the long haul. We're confident justice will prevail and we will go as far as we need to go."

Diaz and his partner, Don Price Johnston, of Miami, sued, along with Catherina Pareto and Karla Arguello of Coconut Grove; Dr. Juan Carlos Rodriguez and David Price of Davie; Vanessa and Melanie Alenier of Hollywood; Todd and Jeff Delmay of Hollywood, and Summer Greene and Pamela Faerber of Plantation.

Equality Florida Institute, a statewide gay-rights group, also is a plaintiff in the case.

"It's a beautiful opinion," Equality Florida Executive Director Nadine Smith said. The judge "states so clearly and so powerfully that marriage is a fundamental right and that denial is a violation of our constitutional rights and our dignity."

Among other landmark Supreme Court cases, Zabel cited Loving v. Virginia, the 1967 case in which the court threw out all state prohibitions against interracial marriage.

"We've said all along that the Loving case is parallel to our case," Price said. "It just shows that discrimination against any class of people is nothing more and nothing less than discrimination. The U.S. society has no stomach for discriminating against anyone."

In 2008, 62 percent of Florida voters approved amending the Florida Constitution to define marriage as between one man and one woman. The attorney general's defense in the case cited the vote and said the judge should respect the will of the state's voters.

But Zabel said fundamental constitutional rights are not subject to majority approval. "A state's constitution cannot insulate a law that otherwise violates the U.S. Constitution," she wrote. "The United States Constitution would be meaningless if its principles were not shielded from the will of the majority."

John Stemberger, who led the 2008 campaign to amend the state constitution, was vehemently critical of Zabel's decision, especially her reference to the Supreme Court case on interracial marriage.

"Wow," said Stemberger, president and general counsel of the conservative Florida Family Policy Council in Orlando. "Race and ethnicity are not an inherent property of marriage. Gender, however, is an inherent property of marriage. This is why her reliance on Loving is misplaced. Loving in essence said any man can marry any woman irrespective of race and ethnicity."

The gay-marriage battle is being waged across the nation. A federal judge this week ruled Colorado's same-sex marriage ban unconstitutional. According to the group Freedom to Marry, LGBT advocates have won more than 20 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.

Zabel referred to the growing number of decisions overthrowing gay-marriage bans in the aftermath of the Windsor decision.

"As case after case has come out, unified in their well-reasoned constitutional condemnation of the deprivation of one class of person's right to marry, the answer to the question of whether it is constitutionally permissible to deprive same-sex couples of the right to marry has become increasingly obvious: Of course it is not," the judge wrote.

Anthony Verdugo, president of the conservative Christian Family Coalition, called Zabel's ruling "corrupt" and "simply illegitimate."

"It goes against Windsor because Windsor says the states have the right to regulate marital relations," Verdugo said. "It goes against that precedent. She has inserted herself into that federal document to overthrow eight million votes. Voter rights is a fundamental freedom. She has overthrown and violated voter rights."

But Elizabeth Schwartz, a Miami Beach lawyer for the six Miami-Dade couples, said Zabel's ruling "makes it crystal clear why the Florida marriage bans are unconstitutional."

"Judge Zabel considered, enumerated and rejected the meritless arguments of the anti-equality forces," Schwartz said. "We're anxious to move forward to appeal on the strength of this soaring order."

The Miami-Dade case mirrors the lawsuit in Monroe County, in which two Key West men, Aaron Huntsman and William Lee Jones, successfully sued County Clerk Amy Heavilin in April for a marriage license, saying Florida's ban violates the U.S. Constitution's equal protection clause.

After Monroe Chief Circuit Judge Luis Garcia ruled in favor of Huntsman and Jones, Florida Attorney General Pam Bondi swiftly announced she would appeal. Her office issued a statement saying that "with many similar cases pending throughout the entire country, finality on this constitutional issue must come from the U.S. Supreme Court."

By filing the appeal notice, Bondi triggered the automatic stay in the case.

This week, lawyers for Huntsman and Jones asked Garcia to lift the stay. He declined, as did Florida's Third District Court of Appeal, which now has the case.

A separate lawsuit is pending in Tallahassee federal court seeking to overturn the state's gay marriage ban and force the state to recognize same-sex marriages performed in other states.

In her ruling's conclusion, Zabel touched on the history of "inalienable rights" stemming from the Declaration of Independence, and how the interpretation of those rights has evolved through slavery, women's rights and longtime discrimination against Native Americans.

"Notably absent from this protracted march towards social justice was any progress for the gay, lesbian, bisexual, and transgender community until quite recently," Zabel 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."