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Stay remains: Florida’s Third District Court of Appeal says Key West bartenders can’t marry yet

Updated Wednesday, 4:40 p.m.

Previously: Motion denied: Judge won’t lift stay and allow gay Key West bartenders to marry on Tuesday

BY STEVE ROTHAUS
srothaus@MiamiHerald.com

An appeals court declined on Wednesday to lift a stay of a Key West judge’s ruling that would have allowed same-sex couples to marry in Monroe County.

Key West bartenders Aaron Huntsman and William Lee Jones, who won permission last week from Monroe Chief Circuit Judge Luis Garcia to marry, had asked the appeals court to lift an automatic stay of the ruling that went into effect when the state appealed Garcia’s decision.

“We certainly believe this stay should be lifted,” said Bernadette Restivo, who represents Huntsman and Jones with law partner Elena Vigil-Fariñas. “Every day this same-sex marriage ban is in place, our clients and other couples like them throughout the state of Florida are irrevocably harmed and discriminated against by this unconstitutional ban.”

This was the men’s second attempt at lifting the stay. On Monday, Garcia, who declared Florida's 2008 gay-marriage ban unconstitutional, denied their first request.

In both the motion filed Monday with Garcia and the second Wednesday with the Miami-based Third District Court of Appeal, Restivo wrote: “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.”

After Garcia's July 17 ruling, Florida Attorney General Pam Bondi swiftly announced she would 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 the appeal notice, Bondi triggered the automatic stay in the case.

Garcia’s original decision that the men — and any other same-sex couple — 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.

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.

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.

Nineteen states and Washington, D.C., have legalized same-sex marriages. Since a U.S. Supreme Court ruling last year that ordered the federal government to recognize those marriages, more than 20 cases have been won by gay-marriage advocates across America.

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