A Miami-Dade judge who in July declared Florida's gay marriage ban unconstitutional has set a hearing in her courtroom for Monday morning — hours before a stay expires in a separate federal case.
On Dec. 22, Miami-Dade Clerk of Courts Harvey Ruvin asked Circuit Judge Sarah Zabel to clarify whether the stay in her case, involving six same-sex couples who sued Ruvin for marriage licenses, will continue past Monday, when a federal judge’s stay expires in a similar federal case. On Aug. 21, U.S. District Judge Robert L. Hinkle also declared Florida’s gay marriage ban unconstitutional, as did circuit judges in Monroe, Broward and Palm Beach counties.
Zabel stayed her own order pending an appeal by Florida Attorney General Pam Bondi to the state’s Third District Court of Appeal, saying she understood her decision would not be the “final word” on the issue. The Miami-Dade and Monroe cases subsequently were combined in appeal, but haven’t yet been heard.
In 2008, 62 percent of Florida voters approved amending the Florida Constitution to define marriage as between one man and one woman. The attorney general’s defense in the case cited the vote and said the judge should respect the will of the state’s voters.
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In her ruling, Zabel said fundamental constitutional rights are not subject to majority approval. “A state’s constitution cannot insulate a law that otherwise violates the U.S. Constitution,” she wrote. “The United States Constitution would be meaningless if its principles were not shielded from the will of the majority.”
While the state’s cases wind their way through Florida courts, the federal case has moved much faster.
Earlier this month, the U.S. Supreme Court and the 11th Circuit Court of Appeals in Atlanta declined to extend Hinkle’s stay, which, when it expires Monday night, will allow same-sex marriages to be licensed and recognized in Florida.
A recommendation from the law firm Greenberg Traurig to the state clerks’ association has caused confusion throughout Florida as to who must abide by Hinkle’s order. The Washington County clerk, named in the federal suit, last week asked Hinkle for clarification. The judge then ordered other defendants in the case, and Bondi, to respond to him by the end of the day on Monday.
About 9:30 p.m. Monday, Bondi filed a response:
“This Court is best situated to determine the reach of its own order,” Bondi wrote on behalf of the secretary of the Florida Department of Management Services, a defendant in the case.
After the Supreme Court announcement on Dec. 19, Ruvin asked Zabel to expedite the state case, perhaps allowing his office to issue licenses before Jan.6.
It’s unknown whether Zabel will lift the stay in her case at the 11 a.m. hearing on Monday.
“We’re hopeful that she will let Miami-Dade lead the way,” said Miami Beach attorney Elizabeth Schwartz, who is helping represent the six same-sex couples and LGBT-rights group Equality Florida Institute in the case. “There’s something beautifully poetic about marriage coming first to the county where the Anita Bryant debacle happened. So much homophobia sprang out of Miami-Dade County at the hands of determined bigots. What sweet justice is it that discrimination of this kind should end here?”