Earlier today, a circuit court judge in Monroe County, Florida–home to the Florida Keys–ruled that Florida’s constitutional ban on same-sex marriage violated the federal Constitution. Although his ruling is limited to Monroe County, it is nonetheless the 25th consecutive court decision in favor of same-sex marriage since the Defense of Marriage Act was effectively ended last summer.
Judge Arturo Garcia’s ruling anticipated the likely argument from proponents of the ban, which passed in 2008 with the support of 62 percent of voters. He noted “the rights of the individual, the rights of the unpopular and the rights of the powerless” must be protected, “even at the cost of offending the majority.” Despite the ruling’s limited scope, the ink had barely dried on it when state attorney general Pam Bondi announced she was appealing the decision to the Third Circuit Court of Appeal, automatically staying Garcia’s ruling. If the stay is lifted before Tuesday, any LGBT couple in Monroe County will be able to get a marriage license. It’s very likely that Bondi is trying to get in front of a similar case in Miami-Dade County where six couples are suing for the right to marry; the Third Circuit’s jurisdiction covers Miami-Dade and Monroe counties.
The plaintiffs in the Keys case, Aaron Huntsman and William Lee Jones, have been together since 2003. When they applied for a marriage license in April, they were turned down almost out of hand by county clerk Amy Heavilin. They almost immediately sued, contending that the state constitution’s ban on gay marriage violated the Due Process and Equal Protection clauses of the 14th Amendment of the federal Constitution.
In oral arguments on July 7, assistant attorney general Adam Tanenbaum argued that Huntsman and Jones could not challenge Florida’s gay marriage ban on federal grounds. He cited Baker v. Nelson, a 1972 decision by the Minnesota Supreme Court that held a state statute against same-sex marriage didn’t violate the federal Constitution. The federal Supreme Court refused to hear the case; since it reached the Supreme Court via mandatory appellate review, it has the same effect as a decision on the merits. Tanenbaum argued that under this precedent, the definition of marriage is solely a state issue, and therefore the court’s only task was to “respect the policy decision made by voters.” Garcia disagreed, saying that changes in federal and state case law, as well as changes in societal views, meant that Baker no longer applied. He then wrote that the right to marry is a fundamental right that has always belonged to the individual–one that is protected by the Due Process Clause.
Looking at Garcia’s ruling, one point is particularly telling. If I’m reading it right, he seems to believe that Florida’s gay marriage ban doesn’t withstand rational basis review, the lowest level of scrutiny when constitutional questions are before a court. Most civil rights cases are decided under heightened scrutiny, so if Florida’s ban doesn’t meet the much lower rational basis standard, it doesn’t bode well for other bans across the country. He wrote that the intent behind Florida’s ban was almost identical to the intent of the Defense of Marriage Act in that it created a separate status for same-sex Florida couples and denied them access to the safety net available to straight couples.
Predictably, several opponents of gay marriage hit the ceiling. John Sternberger of the Florida Family Policy Council claimed that the ruling “ignored the will of the people” and overturned “an act of direct democracy.” Anthony Verdugo of the Christian Family Coalition claimed Garcia’s ruling was “a judicial lynching” of those who supported the ban. Sternberger and Verdugo would do well to read the last paragraph of Garcia’s ruling, in which he pointed out that laws passed by referendum still have to dovetail with the federal Constitution. Otherwise, he wrote, the Constitution is nothing more than “a historical piece of paper.”
In contrast, Jones was ecstatic, saying simply, “Love is love.” As limited as this decision is, it’s still one step closer to being a reality across the land.
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Edited/Published by JA
Darrell Lucus is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
