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Keys men who won marriage case ask appeals court to send case to Florida Supreme Court

BY STEVE ROTHAUS
SROTHAUS@MIAMIHERALD.COM

Pushing for a decision that would topple Florida’s gay-marriage ban in all 67 counties, lawyers for two Monroe County men who won the right to marry asked an appeals court Monday to move the case directly to state's Supreme Court.

“The constitutionality of Florida's laws barring same-sex couples from marriage is an issue of great public importance that has a great effect on the proper administration of justice throughout the state,” lawyers Bernadette Restivo and Elena Vigil-Fariñas, who represent Key West bartenders Aaron Huntsman and William Lee Jones, wrote to the Miami-based Third District Court of Appeal. “There is a need to bring finality to this issue on a statewide basis so that clerks of court throughout the state have uniform guidance as to whether they must issue marriage licenses on an equal basis to otherwise qualified same-sex couples.”

According to the attorneys, “a decision from the Supreme Court would also provide uniform direction and guidance to government, public and private entities throughout the state, including the judiciary, which make decisions on a daily basis with regard to the provision of benefits or rights to persons based in whole or in part on their marital status.”

The lawyers describe the case as “an issue of great public importance that directly and profoundly affects same-sex couples throughout the state, as well as their children and other family members, by excluding them from a right the Supreme Court has declared to be ‘of fundamental importance for all individuals.’”

The appeals court gave Florida Attorney General Pam Bondi, whose office has appealed the men’s legal victory, 10 days to respond.

On July 17, Monroe Chief Circuit Judge Luis Garcia declared Florida's 2008 gay-marriage ban unconstitutional, ruling against Bondi, whose office defended the ban. Huntsman and Jones have not been allowed to marry: Florida law mandates that an automatic stay pending appeal is triggered when a public official loses a court case.

The Monroe County case mirrors one in Miami-Dade, in which Circuit Judge Sarah Zabel on Friday ordered that six same-sex couples also be allowed to marry, but stayed her ruling pending appeal.

Preventing same-sex couples from marrying, Zabel said, “serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions of our society.”

The gay-marriage battle is being waged across the nation. Currently, gay marriage is legal in 19 states and Washington, D.C.

A federal judge last week ruled Colorado’s same-sex marriage ban unconstitutional. And on Monday, a federal appeals court upheld a lower court’s ruling that Virginia’s ban on gay marriage is unconstitutional, a decision that could topple similar prohibitions in the Carolinas and West Virginia.

Late Monday afternoon, North Carolina’s attorney general announced his office will no longer fight lawsuits seeking to overturn the state's ban, according to the national advocacy group, Freedom to Marry.

“Attorney General Roy Cooper is the ninth state attorney general across the country who has refused to defend a state marriage ban,” Freedom to Marry Executive Director Evan Wolfson said in a news release. “Cooper's decision follows similar moves from the attorneys general in California, New Mexico, Illinois, Pennsylvania, Nevada, Virginia, Oregon, and Kentucky. Each of these attorneys general refused to defend anti-marriage laws in their states, declaring them unconstitutional and indefensible, as have nearly 30 consecutive rulings in state and federal courts across the country.”

According to Freedom to Marry, LGBT advocates have won more than 25 times in federal, state and appellate courts since June 2013, when the U.S. Supreme Court ruled in favor of Edith Windsor, a lesbian widow, and threw out a key portion of the 1996 Defense of Marriage Act.

The U.S. Supreme Court has not ruled on the constitutionality of state marriage bans.

It is likely that the Monroe and Miami-Dade cases will be appealed together and that whatever decision is reached by the appeals court will affect both.

“Florida's same-sex couples have waited long enough for marriage equality so, while we respect whatever decision is made by the Third District Court of Appeal with regard to certification of this pressing matter, we do hope to proceed directly to the Florida Supreme Court,” said Elizabeth Schwartz, a Miami Beach attorney helping represent the six same-sex couples and Equality Florida Institute in the Miami-Dade suit. “Our team is working very closely with the Monroe County case's counsel, coordinating strategies and providing drafting support. I'm confident that together our cases will serve to be another nail in the coffin of these bigoted marriage bans.”

Restivo said whichever side might lose at the Florida Supreme Court could then “petition the United States Supreme Court to take the case.”

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