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Awaiting decision: Six same-sex couples ask Miami-Dade judge to let them marry now

BY STEVE ROTHAUS
srothaus@MiamiHerald.com

The battle over same-sex marriage in Florida shifted Wednesday to a Miami-Dade courtroom, where attorneys for six same-sex couples asked a judge to throw out the state’s gay marriage ban and order the county clerk to immediately issue licenses to the men and women.

Miami-Dade Circuit Judge Sarah Zabel told a courtroom packed with hundreds of advocates of same-sex marriage and supporters of traditional marriage that she would take the lawyers’ arguments under advisement, but did not say when she would issue a ruling. Previous decisions in the case have taken weeks to be announced.

“It’s fitting, I think, that we’re here arguing this very, very significant issue on the 50th anniversary of the civil rights bill that was enacted by Congress. We’re also two days from the birthday of our country, a country that was founded on the concept of liberty, freedom and equality of all of our citizens,” attorney Jeffrey Michael Cohen told Zabel. “That is all that we seek today.”

Cohen and co-counsel Sylvia Walbolt asked Zabel to order Miami-Dade County Clerk Harvey Ruvin to issue marriage licenses to same-sex couples.

Walbolt told Zabel that Florida’s gay marriage ban discriminates against gay and lesbian couples, just as the 1996 federal Defense of Marriage Act did. A year ago, the U.S. Supreme Court struck a portion of DOMA, ordering the U.S. government to recognize same-sex married couples.

“The essence of DOMA was to create inequality with respect to the right to marry. That inequality demeans, burdens same-sex couples in numerous ways, some mundane, some profound. And it humiliates their children and stigmatizes them,” Walbolt told the judge.

Assistant Attorney General Adam Tanenbaum, representing the state, did not address whether or not gay people should be allowed to marry. He said the people of Florida spoke when they approved an amendment to the state constitution in 2008, by almost 62 percent, to prevent gay marriage.

“The voters in 2008 made a policy decision which they had a right to do as to what the definition of marriage should be in the state of Florida,” Tanenbaum said. “They had that right and it’s not for this court to second-guess or make a determination whether that was a good policy or a bad policy. It remains for this court to simply follow what is binding legal precedent from the U.S. Supreme Court and not to guess what the U.S. Supreme Court may or may not do in the future.”

Attorneys representing the same-sex couples asked the judge for a summary judgment in their favor. If Zabel decides against a summary judgment, the case would move to trial.

“Justice delayed is justice denied, so we hope the court will act swiftly,” said Nadine Smith, executive director of Equality Florida, a plaintiff in the case along with the six couples: 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; Summer Greene and Pamela Faerber of Plantation; and Don Price Johnston and Jorge Isaias Diaz of Miami.

All six couples were in court Wednesday. About 140 people filled the main courtroom where arguments were presented; another 110 filled an overflow courtroom, and another 100 who couldn’t get seats waited downstairs in the main lobby. After the hearing, both gay-marriage advocates and supporters of traditional marriage held demonstrations outside the courthouse.

The anti-gay-marriage demonstrators were far more vocal. About 45 minutes after the court adjourned, dozens of anti-gay-marriage demonstrators shouted “respect my vote” and “man and woman.” One person on the pro-gay-marriage side of the tape respond with a “peace and love” chant.

Both sides used megaphones. There were individual exchanges between the demonstrators, with one gay-marriage supporter asking someone on the other side of the tape, “How can we respect you if you don’t respect our rights?”

The gay-marriage battle is being waged across the nation. A federal judge on Tuesday ruled Kentucky’s same-sex marriage ban unconstitutional. Gay marriage advocates have won 18 times in federal and circuit courts across the country since June 2013, when the U.S. Supreme Court threw out a key portion of the 1996 Defense of Marriage Act.

Last year, Supreme Court justices determined the federal government must recognize same-sex marriages, but did not address whether state marriage bans are legal.

Eladio José Armesto, chairman of the conservative Florida Democratic League, believes Florida voters had the legal right to amend the state’s constitution.

“If Judge Zabel is competent to understand the constitution,” she will throw out the plaintiff’s challenge, Armesto said Wednesday. “She will realize this lawsuit is constitutionally offensive and it seeks to have her violate the constitution from which she derives her authority, and which she swore to uphold when she took her oath of office.”

Armesto doesn’t expect that will happen.

“We are prepared to fight judicial tyranny and to defend and uphold the Florida Constitution and the voter rights of Florida citizens,” he said. “We have said from the very beginning this is not about marriage. It is about defending the due process and equal protection rights of all citizens, including the plaintiffs as well.”

In January, Equality Florida Institute and the six couples sued Ruvin to issue them marriage licenses. The plaintiffs are represented by the law firm Carlton Fields Jorden Burt, attorneys Elizabeth F. Schwartz and Mary B. Meeks and the National Center for Lesbian Rights.

Ruvin’s office has not vigorously defended the ban. “We filed our affidavits. What we’re contending is the marriage license bureau is purely ministerial,” Ruvin said last week. “We’re prepared to follow any directive of the court.”

Lawyers representing Ruvin asked Zabel on Wednesday that if she rules in favor of same-sex marriage, that she also update the Florida marriage license, replacing “husband” and “wife” with, perhaps, “Spouse 1” and “Spouse 2,” similar to marriage licenses in New York and California, where same-sex couples can already wed.

After the six couples sued Ruvin, two Key West men sued Monroe County Clerk Amy Heavilin for a marriage license. Heavilin also is not actively defending the state’s gay marriage ban. On Monday, attorneys for Aaron Huntsman and William Lee Jones will ask Monroe County Circuit Judge Luis Garcia to allow them to wed.

Following complaints from conservatives throughout the state that she remained silent for months on the two right-to-marry cases, Florida Attorney General Pam Bondi on June 24 announced her office would defend the gay marriage ban in circuit court.

Bondi had already begun defending Florida in a federal lawsuit filed last April in Tallahassee by Miami-Dade gay-rights group SAVE and the ACLU of Florida on behalf of eight same-sex couples married elsewhere. That legal challenge maintains the state is discriminating against gay couples by not recognizing same-sex marriages performed in states where they are legal.

Miami Herald staff writer Barry Jackson contributed to this report.

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Asst. AG Tanenbaum and Conservatard Hack Armesto both claim that these marriage equality cases should be thrown out at summary judgment, because "the people have voted". Naturally, they don't wish to begin to discuss whether or not LGBT people have a fundamental right to marry the one we love. They know that, if they went down that path, they would lose immediately.

They'll lose in the end, anyway. Why?

While the Legislature and the People by referendum may vote about "policy decisions" and express their will, thereby, as to many things, they may NOT vote away the fundamental rights of any citizen. “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

The right to marry is a well-established and fundamental right, one that predates all human civilization. So long as there has been a United States of America, our US Supreme Court has recognized that EVERY American citizen has the right to marry. The question then, becomes, of what is this "right to marry" composed?

Certainly, the right to marry is composed of the right to CHOOSE whether and then WHOM to marry. The ability to freely choose one's mate inheres directly in the act of marrying oneself to another. No heterosexual person would ever accept any direction from the US Federal Government or the State Governments as to whom it is that he/she might marry. Why then do so many heterosexuals believe that LGBT people should have to accept such direction?

There are those who holler that LGBT people are asking for some new and special kind of right, the right to "same-sex marriage", as opposed to the right to "traditional" or "opposite-sex marriage". But the US Supreme Court has never looked at marriage that way. Marriage for ALL is the fundamental nature of the right, not marriage only for those who pay their child support (Zablocki v. Redhail (US 1978)) or for those who are not prison inmates (Turner v. Safley (US 1988) or for those who are of the same race (Loving v. Virginia US 1967). In fact, the US Federal Constitution recognizes marriage for those of the same sex, at least so long as the State in which that marriage was celebrated does as well (US v. Windsor US 2013). And because the decision in Hollingsworth v. Perry (US 2013) was to let stand the lower court's decision overturning Prop 8 in California, and not to vacate it and dismiss that case "for lack of a federal question", we have it on record that the US Supreme Court believes, all people, including LGBT people, have the right to marry the one we love.

Some 23 federal district courts and 1 federal appellate court have held that there is no difference between opposite-sex and same-sex marriages, other than the sex of the marital partners. These courts have repeatedly found that there is NO RATIONAL BASIS from which to conclude that a State may exclude LGBT people from marrying the one we love. And several of these courts have found instead that same-sex marriage bans are motivated only by "moral disapproval" of LGBT people or, even, outright animus against the LGBT community.

But neither moral disapproval or animus is a proper basis for enacting any legislation in these United States.

So, yes, the People of Florida voted to keep gays out of marriage. But that was an UNCONSTITUTIONAL vote, and the amendment of Florida's Constitutiona to that effect was null and void on the day it was adopted.

Too bad, haters ! Marriage Equality is coming soon to the Sunshine State !

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