Florida's Republican attorney general, Pam Bondi. | FLORIDA ATTORNEY GENERAL'S OFFICE
Just a week after one trial judge ruled that Florida’s constitutional and statutory ban on same-sex marriage violates the 14th Amendment of the US Constitution, a second judge there has come to the same conclusion.
Miami-Dade County Judge Sarah Zabel’s July 25 ruling followed Monroe County Circuit Judge Luis M. Garcia’s from Key West on July 17.
As in the earlier case, Florida Attorney General Pam Bondi, a Republican, immediately responded by filing a notice of appeal, which blocked Garcia’s decision from going into effect. Anticipating this move, Zabel stayed her decision pending appeal.
Defenders of same-sex marriage ban even pointed to risk of promoting AIDS among gay men
The Miami-Dade case was filed earlier this year on behalf of six same-sex couples denied licenses at the county clerk’s office. The plaintiffs are represented by Elizabeth F. Schwartz and Mary B. Meeks, both attorneys from the law firm of Carlton Fields Jorden Burt, and the National Center for Lesbian Rights. Equality Florida Institute, representing its members who are also seeking the right to marry, joined the six couples as co-plaintiff.
The State of Florida intervened to defend the marriage ban, but the Dade County clerk took no position regarding its constitutionality, while the City of Miami Beach joined with the City of Orlando in filing an amicus brief in support of the plaintiffs and participating in the oral arguments. Several groups that worked to enact Florida’s 2008 state constitutional amendment banning gay marriage filed amicus briefs in its defense.
Though the long and unbroken string of marriage equality victories since December have taken on a familiar pattern, Zabel did take the occasion to write a thorough decision that falls solidly within the mainstream of the other two dozen favorable rulings. She offered several pointed comments, though much of her decision draw on pertinent quotes from those earlier decisions.
Responding to the state’s argument that the court must respect the will of the 2008 referendum voters, 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 US 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 Supreme Court’s 1972 rejection of a marriage equality appeal from Minnesota, finding that in the intervening 40 years the Court’s statement that same-sex marriage did not present a “substantial federal question” was no longer accurate.
Responding to the plaintiffs’ claims under the Due Process Clause, Zabel sided with other courts that rejected the argument that plaintiffs are seeking a “new right of same-sex marriage.”
“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,” she wrote. “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.”
Zabel concluded the state had provided no compelling interest to justify abridging this fundamental right enjoyed by same-sex couples.
Looking to past Florida litigation regarding gay parenting, the judge wrote, “These reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children… this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise.”
Withholding marriage rights from same-sex couples to advance the state’s compelling interest in having children raised in the best setting, therefore, was a non-starter. In fact, Zabel pointed out, denying marriage to same-sex couples with children “actually harm the amici’s stated objective of promoting the best interest of children.”
The judge also addressed an issue not raised in earlier marriage litigation, the claim by some of the marriage ban’s defenders that it “prevent[s] the spread of HIV and certain cancers that are more prevalent among gay men. They assert that allowing same-sex marriage will de-stigmatize homosexual conduct, and thereby encourage sexual practices which help spread those diseases.”
To this point, Zabel was dismissive.
“It is absurd to suggest that a marriage law can combat a medical disease,” she wrote.
Even when reviewed with the most lenient judicial standard, Zabel concluded, the marriage ban lacked any rational basis. It serves only to make gay and lesbian people “second-class citizens.” The judge then quoted Justice John Marshall Harlan famed dissent in the 1896 Plessy v. Ferguson Supreme Court case that upheld racial segregation: “Our Constitution neither knows nor tolerates classes among citizens.”
Zabel concluded her opinion by noting that marriage equality remains controversial but making clear why it is constitutionally mandated.
“The Court,” she wrote, “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.”
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 breakneck speed of marriage equality progress, it may become irrelevant if it does not move through the Florida appellate system more quickly than is typical there. Appeals panels in the 10th and Fourth Circuits have struck down marriage bans in Utah, Oklahoma, and Virginia, and the Sixth, Seventh, and Ninth Circuits are hearing arguments regarding numerous state bans over the next six weeks. The likelihood, then, is that the issue will end up at the US Supreme Court in the term that begins in October and the issue will be settled there by June of next year.
