Updated 5:16 p.m. Monday
- Read the gay men’s motion to allow them to marry Tuesday
- Read Attorney General Pam Bondi’s response to judge: Do not lift stay
- Read the order: Judge Luis Garcia denies motion to lift stay
BY STEVE ROTHAUS
Wedding bells will not ring Tuesday for gay Key West bartenders Aaron Huntsman and William Lee Jones. Or for any other same-sex couples planning to have a Conch Republic wedding any time soon.
Monroe Chief Circuit Judge Luis Garcia, who last week overturned Florida’s 2008 constitutional gay-marriage ban and ordered the two men be allowed to wed, on Monday denied their request to lift an automatic legal stay that prevents them or other gay couples from marrying immediately.
“Based on decisions of the United States Supreme Court and other courts to stay proceedings in similar challenges, this court DENIES the Emergency Motion,” Garcia wrote. “The automatic stay, currently in place, shall remain in place until completion of appellate proceedings or until further order of this Court.”
In his ruling Thursday, Garcia ordered that Huntsman and Jones and other gay couples seeking to wed be allowed to marry beginning on Tuesday.
“The court is aware that the majority of voters oppose same-sex marriage, but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and rights of the powerless, even at the cost of offending the majority,” Garcia wrote in his opinion.
Florida Attorney General Pam Bondi then swiftly announced she would appeal Garcia’s ruling to the Third District Court of 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 a notice of appeal, Bondi triggered an automatic stay in the case, meaning that Garcia’s ruling is put on hold. If Garcia had lifted the stay, Bondi would have needed to ask the appeals court to reinstate it.
Bernadette Restivo, who with law partner Elena Vigil-Fariñas represents Huntsman and Jones, asked Garcia on Monday to lift the stay.
“The Plaintiffs and other same-sex couples who wish to marry are suffering serious, irreparable harms every day [Florida’s Marriage Protection Act] remains in effect,” Restivo wrote to Garcia.
Bondi quickly responded, writing to Garcia that he should not lift the stay.
“The United States Supreme Court has issued orders staying lower court decisions regarding same-sex marriage lawsuits. So have several federal courts of appeals. And many trial courts have stayed their orders on their own. They have all acted to maintain the status quo while the issues presented are resolved. This Court should likewise maintain the status quo and leave the automatic stay in place until further appellate proceedings are concluded,” Bondi wrote.
Garcia’s original decision that the men should be allowed to marry applies only to Monroe County, because it was filed in front of a state judge who has jurisdiction only in the county where he sits. Miami-Dade County Circuit Judge Sarah Zabel has yet to rule in a similar case.
The Monroe case mirrors the suit in Miami-Dade, in which six same-sex couples and LGBT advocacy group Equality Florida Institute sued County Clerk Harvey Ruvin for the right to marry. In both cases, Florida Assistant Attorney General Adam Tanenbaum argued that the judges should not dismiss Florida’s constitutional gay marriage ban, which passed in 2008 with the support of 62 percent of voters. The state, citing a 1972 U.S. Supreme Court ruling, contended that the definition of marriage belongs exclusively to the state and is exempt from federal scrutiny.
After Garcia’s initial ruling, Miami Archbishop Thomas Wenski applauded Bondi’s opposition.
“Although this ruling is limited in scope — applying only to Monroe County — it represents another salvo in the ‘culture wars’ that ultimately seek to redefine the institution of marriage as solely for adult gratification,” Wenski said in a Catholic Church news release.
Huntsman and Jones, who met at a gay pride celebration and have been a couple for 11 years, sued Monroe County Clerk Amy Heavilin in April for a marriage license, saying Florida’s ban violates the U.S. Constitution’s equal protection clause.
Ron Saunders, general counsel for the Monroe County Clerk’s office, said clerk’s office employees were prepared to issue marriage licenses if Garcia ordered them to do so.
Marriage licenses must be filled out in person by both spouses at any one of four Monroe County clerk’s offices. Forms cannot leave the office, Saunders said.
Monday afternoon, Huntsman and Jones were on their computer taking an online premarital class, which would have allowed them to marry Tuesday.
“Complete a Premarital Preparation Course for your Florida Marriage License and Avoid the 3-day Wait Period (or just because you WANT to!)” reads the website, floridapremaritalcourse.com.
The four-hour online course costs $30, and can be paid by credit card or Paypal. At least 34 of Florida’s 67 counties have approved the website for premarital counseling.
Two counties, Flagler and Monroe, require original documentation that a couple has completed the course. “They will not accept the emailed certificates,” according to the website.
If Garcia lifted the stay, Huntsman and Jones would have needed to have the original documentation delivered overnight to marry on Tuesday.
“We’re not doing this to be the first to get married,” Huntsman said. “We’re doing this to change the laws for everybody.”
Huntsman, who celebrated his 44th birthday Monday, said he wasn’t disappointed with Garcia’s ruling.
“It would have been cool [to marry] tomorrow, but it’s all going to change,” he said. “It’s all right.”
Miami Herald staff writer Cammy Clark contributed to this report.
Florida’s three-day waiting period
Florida law usually requires a three-day waiting period for any couple who applies for a marriage license. There are exceptions, however. From the clerk’s website:
* If both parties are Florida residents they must both attend a premarital class and present certification of the attendance to the clerk at the time of application. There is no waiting period. If no class is attended, there is a three (3) day waiting period (from the date of issue), before the marriage ceremony may take place. This class must be taken thru an authorized provider listed in Monroe County. Original certificate of completion is required at time of application. List of providers is available upon request.
* If only one of the couples is a Florida resident and the Florida resident takes the course, there is no waiting period.
* If both parties are out of state residents, there is no waiting period.