BY STEVE ROTHAUS
A state appeals court on Thursday rejected Florida Attorney General Pam Bondi's request to hold off on deciding the constitutionality of Florida's gay-marriage ban until after the U.S. Supreme Court someday rules on the issue.
“Upon consideration, appellant’s motions to stay briefing are denied,” the Miami-based Third District Court of Appeal said in a terse ruling Thursday.
“That is the best news of the day. We would have been sitting in limbo for an undetermined amount of time,” said attorney Bernadette Restivo, who represents Aaron Huntsman and William Lee Jones, two Key West bartenders who on July 17 won the right to marry in Monroe County Circuit Court. “Pam Bondi’s stay would have caused enormous irreparable harm to the plaintiffs and others similarly situated. Every day that we move forward in this case will hopefully mean we are moving closer to ending this oppressive discrimination.”
Said Bondi’s spokeswoman Jennifer Meale: “The Court has ruled that the case will move forward, and we will proceed accordingly.”
Monroe Chief Circuit Judge Luis Garcia declared Florida's 2008 gay-marriage ban unconstitutional, ruling against Bondi, whose office defended the ban. Despite that decision, Huntsman and Jones have not been allowed to marry because Florida law mandates an automatic stay pending appeal when a public official loses a court case.
On July 25, Miami-Dade Circuit Judge Sarah Zabel also ordered that six other same-sex couples be allowed to marry, but stayed her ruling pending appeal.
Bondi appealed both cases and on Aug. 7 asked the Third DCA, which has jurisdiction over Monroe and Miami-Dade counties, not to hear them until after the U.S. Supreme Court decides the issue. “Neither this Court nor the Florida Supreme Court can decide this federal issue with finality,” Bondi wrote to the appeals court. “The United States Supreme Court, however, ‘has the final word on the United States Constitution.’”
The U.S. Supreme Court has not yet agreed to decide whether state marriage bans are unconstitutional. In June 2013, the court threw out a key portion of the federal Defense of Marriage Act and ordered the U.S. government to recognize the Canadian marriage of lesbian Edith Windsor, a New York widow. Since then, same-sex couples have won more than 30 times in federal, state and appellate courts, according to the group Freedom to Marry.
Also on Thursday, the appeals court agreed to consolidate the Monroe and Miami-Dade cases, so they can be heard together.
“For consistency sake, the cases are very similar,” Restivo said. “We have been working in conjunction with the attorneys in the [Miami-Dade] case. It’s important for us to work together to narrowly tailor the issues on appeal. We’re speaking out of one voice sending the exact issues up to the Florida Supreme Court.
The appeals court ruling came a day after a state appeals court in Central Florida asked the Florida Supreme Court to decide the issue once and for all. The Second DCA agreed 10-3 to “pass through” the case of Mariama Monique Changamire Shaw and Keiba Lynn Shaw, a lesbian couple married in Massachusetts in 2010, who are now seeking a divorce in Tampa. Hillsborough County Circuit Judge Laurel Lee refused to grant the couple a divorce because state law bans same-sex marriages. The state Supreme Court has not decided whether to hear the case or send it back to the appeals court.
To date, three other judges in Florida have also declared the state’s 2008 gay marriage ban unconstitutional.
• On Aug. 4, Broward Circuit Judge Dale Cohen agreed to dissolve the Vermont civil union of Lake Worth art dealer Heather Brassner, whose former partner cheated on her and then disappeared. Cohen stayed the ruling, but says he will formally divorce Brassner and Megan Lade on Sept. 10 unless Bondi appeals his order (which Bondi hasn’t done) according to Brassner’s attorney, Nancy Brodzki of Coral Springs.
• A day later, Palm Beach County Circuit Judge Diana Lewis ruled in favor of W. Jason Simpson, who asked to be personal representative in the estate of his husband, Frank Bangor, who died March 14. The two men, together 37 years, were married Oct. 23, 2013, in Delaware.
In her ruling, Lewis noted that shortly after Bangor died, the state of Pennsylvania legalized gay marriage and that Florida’s anti-gay marriage laws “unnecessarily discriminate” against Simpson. The judge also wrote that her ruling only applies to the Simpson case. Lewis’ ruling becomes final no later than the second week of September if Bondi fails to appeal, said Simpson attorney Drew Fein of Boca Raton.
• On Aug. 21, U.S. District Judge Robert L. Hinkle of Tallahassee ruled against Bondi, declaring the state’s gay-marriage ban discriminates against nine married couples and others who sued to have out-of-state marriages recognized by Florida. Hinkle stayed his ruling until after the appeals process is completed.