On Tuesday, Jan. 21, Equality Florida and the National Center for Lesbian Rights announced from a Miami Beach press conference that they would, as had previously been hinted, team up to challenge Florida’s gay marriage ban in Florida courts. Though the move falls in line with recent historic efforts in Utah, Oklahoma, Virginia and Pennsylvania (among many others), Florida’s first step toward righting the perceived wrongs of 2008’s Amendment 2 is impressive in its own right.
Six same-sex couples – three male, three female – who have been in committed relationships for as long as 25 years are suing the Miami-Dade County Clerk of Courts Harvey Ruvin following his office’s refusal to issue them marriage licenses on Jan. 17. Five of the six couples have children together, and one of those couples – Melanie Leon Alenier and Vanessa Alenier – helped overturn Florida’s ban on gay adoptions when they won a court case in 2010 allowing them to legally adopt a 21-month-old child who had lived with them since he was 9 days old.
“We spend our life together as if we’re married. The only difference is that we’re not married. Florida is our home, and more than anything, we want to get married in Florida,” the Aleniers said following the Tuesday press conference.
All but one of the couples involved in the case attended the press conference. The plaintiffs are Catherina Pareto and Karla Arguello, who have been together for 14 years; Todd and Jeff Delmay, in a relationship for 11 years; Summer Greene and Pamela Faerber, together 25 years (“In the 1970s, Anita Bryant told us that we were not acceptable at a time when acceptance and fitting in meant everything to a teenager. Today, we’re here before you seeking the freedom to marry,” Greene said at the press conference); Dr. Juan Carlos Rodriguez and David Price, together 18 years and raising twins; and Don Price Johnston and Jorge Isaias Diaz, together for one year.
“Marriage matters,” Diaz said. “It matters to us, because sometimes all you have to hold onto is each other.”
Also named as a plaintiff in the lawsuit is the Equality Florida Institute – the 501(c)3 nonprofit educational arm of Equality Florida – which is suing on behalf of its statewide membership.
“Equality Florida Institute members include many same-sex couples who long for the freedom to marry and would marry in Florida, if Florida law permitted them to do so,” the organization said in a statement.
The suit, filed Jan. 21 in a Miami circuit court, will be adjudicated by Judge Sarah Zabel, who specializes in family law (and who is also the wife of former Miami Beach mayor Myron Rosner). The case uses similar language to that in the Supreme Court’s 2013 decision overturning the federal Defense of Marriage Act. The same strategy led to positive court rulings in Utah in 2013 and Oklahoma in early January. In Florida, a broad legal coalition including law firm Carlton Fields Jorden Burt, attorney Elizabeth F. Schwartz, attorney Mary B. Meeks and National Center for Lesbian Rights legal director Shannon Minter will directly challenge state law in the places where it bans same-sex marriage, both in statute and in the constitution: Article 1, Section 27 of the Florida Constitution, and Section 741.04 and 741.212 of the Florida Statutes. (Disclosure: Meeks represented this reporter in a probate case last year.)
The grounds are that the Florida gay marriage ban violates the equal protection clause of the 14th Amendment of the U.S. Constitution, depriving same-sex couples of their fundamental right to marry and infringing on their constitutionally protected interests in liberty, dignity, privacy, autonomy, family integrity and intimate association.
The legal standard being employed is that the Florida gay marriage ban does not rationally further any legitimate government interest, but serves only to injure and humiliate same-sex couples and their families, and therefore cannot stand the most basic level of constitutional scrutiny. Also, because it discriminates against the plaintiffs on the basis of their sex and sexual orientation – classes subject to historic discrimination – the ban is subject to a heightened level of constitutional scrutiny.
Meeks says that it was the recent Oklahoma ruling on the matter that was the “real trigger” in getting the litigation rolling. Earlier this month, U.S. District Judge Terence Kern came down hard against that state’s marriage ban, one that had passed as a ballot measure 10 years ago with 75 percent of the vote.
“Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class,” Kern wrote in his decision. “It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”
Last summer, immediately following the historic Supreme Court decision, gay activist (and perceived gay activist) groups quarreled over whether a ballot measure initiative aimed at overturning Florida’s ban might be likely to provide more immediate relief than if the organizations jumped through the legal hoops a court challenge presents. Oklahoma, at least to some degree, changed that, even though Oklahoma is not in the clear for marriage equality yet. It waits, along with Utah, for an appeals court to weigh in.
Though Equality Florida has been vetting candidates to be plaintiffs for some time, in part through its “Get Engaged” campaign for marriage equality, the actual case “wasn’t very long in the planning,” according to Meeks. There are many states with pending cases, but the difference with these recent challenges – including Florida’s – is that they include language from the Supreme Court’s decision to challenge state laws, something Meeks thinks most states will employ in the future.
The long view for Florida is likely to involve a drawn-out and costly appeals process. That appeal will have to go to the state level in order for equal rights to apply statewide, with the ultimate goal of marriage equality going back to the U.S. Supreme Court to change the federal law. If Florida’s various jurisdictions rule favorably for the plaintiffs, it sets more precedent to present to the notoriously conservative 11th District federal court in Atlanta. As more states and districts rule favorably, the case will become even stronger when it’s presented on the national stage again.
“At whatever point we go to the Supreme Court, you want to be able to say 20 out of 25 districts ruled this way,” Meeks says, saying that it brings the “weight of precedent and authority” to the case. “It’s for such a simple, fundamental, legal concept. When even conservative-appointed judges will look at the legal issue, it’s pretty clear.”
Meanwhile, the fight continues in the state Legislature this year to advance a bipartisan statewide domestic-partnership bill; a similar bill received its first hearing, after years of unsuccessful attempts, in 2013.
“As you know, the legal process takes a long time. I think it’s great that this monumental and historic step is being taken, but it’s going to take years,” Meeks says. “Yes, this is the big cheese. But while we’re fighting for that, there are still people that need the lesser protections from the statewide domestic partnership registry.”
That could present a messaging conundrum. During last year’s presentations on the matter, one of the most outspoken opponents of gay marriage and same-sex domestic partnerships in the state, Florida Family Policy Council president John Stemberger, would often argue that domestic partnerships are little more than a gateway to gay marriage. Stemberger released a statement after the Jan. 21 lawsuit announcement – seemingly caught by surprise – indicating that he and his conservative allies would not be backing down on the issue.
“Today’s lawsuit is nothing more than a publicity stunt,” Stemberger wrote. “Filed in Miami, it represents ‘forum shopping’ in the most liberal legal venue in the state. However, we are confident that Florida’s Attorney General Pam Bondi will provide a vigorous defense of Florida’s long-held law, and in doing so, will expose the radical views and overreaching legal positions set forth in today’s lawsuit. The Florida Family Policy Council will vigorously defend the victory of 2008 and the constitutional mandate from Floridians that marriage is between one man and one woman. Hundreds of thousands of ordinary citizens volunteered to see marriage protected in Florida, and we will not sit idly by and watch leftist groups try to undermine this common-sense legal precedent. We will spend as much time and money as necessary to oppose those who seek to redefine marriage in Florida. The six same-sex plaintiff couples in this lawsuit appear to be very sincere and are certainly free to self-define themselves and have private civil-commitment ceremonies. But they, and the activists who motivated them, are not free to redefine a fundamental human institution which has served civilization since the beginning of time.”
Because this is a constitutional challenge, Attorney General Bondi has received a copy of the complaint.
Equality Florida statewide field director Michael Farmer dismisses the substance and the tone of Stemberger’s latest volley.
“If you look at Stemberger’s ranting press release, you have the crumbs that are left from the decrepit old-school argument people continue to have,” he says. “It comes off as arrogant and heartless.”
As to whether this will ramp up Stemberger’s ire (and that of the base that follows him) with domestic partnership playing out in the legislature, Farmer doesn’t draw as direct a connection.
“Maybe it’s a little naive,” he says. “I don’t know that it will really change that much. We’ve always been an organization that has been upfront about the fact that we want full marriage equality. It doesn’t mean that we don’t have to deal with the confines of our current situation. Domestic partnerships are not even close to the same thing as marriage. I think for us, one of the frustrating things about him using that scare tactic is, on a strategic level, [the statewide domestic partnership] bill is not about that for us. It’s about finding the quickest way to find the most amount of equality for the most people in need.”
Besides, the public tide is clearly turning. Last week an Oregon judge consolidated two challenges to that state’s marriage ban, and the matter may even be decided before it even reaches the ballot this fall. Proponents of overturning the ban don’t see the two-pronged effort as a waste of time, though.
“We’re committed to bringing [gay] marriage to Oregon as quickly as possible and doing it in a way that permanently solves the problem,” Oregon ACLU director David Fidanque told the Associated Press. “And that’s why we’re pursuing the parallel tracks of the court action and the ballot measure.
It’s important to get the constitutional ban out of the state constitution even if the litigation is successful.”
Similar maneuvering may be on the horizon in Florida, Farmer says. A new Public Policy Polling study found that, for the first time, a majority of Floridians support gay marriage: 47 to 44 percent, up 14 percent in a little more than two years. For those under the age of 45, the margin of support is 58 to 34 percent.
“On a good day, we’re somewhere in the low 50s; we need to do better than that,” Farmer says. “I think one of the questions we have to ask ourselves – and we’re really confident that justice will prevail in the courts, it’s long been the place that people go as a minority … There’s going to be a moment where we have to decide if we’re going to go after a ballot measure. There are a lot of decisions that are coming together that are really tough for the organization.”
Then again, based on the response this latest announcement has stirred up in phone calls and donations, Farmer remains optimistic.
“We have never had so much press, and we’ve never had such a big platform,” he says.
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