Just as the U.S. Supreme Court invalidated part of the federal Defense of Marriage Act in June 2013 and ordered the federal government to recognize legally married same-sex couples, LGBT activists in Florida ramped up efforts to undo the state’s 2008 constitutional gay-marriage ban.
Eighteen months later, it appears undone and same-sex couples are expected to marry, as early as Monday.
“Anybody who does this work realizes it’s a marathon and we’re in it for the long haul. Not just this case, but this whole marriage equality movement has progressed at breakneck speed,” said Miami Beach attorney Elizabeth Schwartz, who has helped represent six same-sex couples who on Jan. 21, 2014, sued Miami-Dade County Clerk Harvey Ruvin for marriage licenses.
“Certainly there’s been some great lawyering and courageous judges, but the credit goes to every gay and lesbian couple who speaks out and shares their truths. It gives people the benefit of knowing them and the opportunity to see us for who we are,” Schwartz said. “It’s much harder to discriminate against people you know and see and identify. It’s easier to be prejudiced when LGBT people are a far-off concept.”
Not everybody agrees with Schwartz and other LGBT activists.
“Everyone has the right to live their lives as they wish. But it’s either their way or the highway. They want us to tolerate their posture or beliefs, however they don’t accept the other side, which is the status quo,” said Mario Salazar, an IT sales director in Coral Gables against same-sex marriage. “I believe it’s not a constitutional right, to be honest with you. It’s a choice. The people have voted on this, and the people by a majority have not agreed with the judges. It’s the politics and the new agenda going on right now.”
U.S. Census and other data suggest there are about 48,500 cohabiting same-sex couples in Florida, according to Williams Institute, a think tank at the UCLA law school in Los Angeles.
“Williams Institute research also suggests that 24,248 of these couples will marry in the first three years,” an institute email sent Saturday.
Since New York widow Edith Windsor won her landmark Supreme Court case on June 26, 2013, four cases challenging Florida’s marriage ban have been heard and won in state court. A fifth involved nine same-sex couples legally married elsewhere who sued Florida in federal court to recognize their marriages; a widow asking that her late wife’s death certificate be amended from “single” to “married” and two men seeking to marry in North Florida’s Washington County.
Beginning in mid-July, judges in all five cases unequivocally declared Florida’s gay marriage ban unconstitutional.
▪ On July 17, Monroe Chief Circuit Judge Luis Garcia ruled the gay marriage ban unconstitutional and that Aaron Huntsman and William Lee Jones of Key West could marry.
▪ On July 25, Miami-Dade Circuit Judge Sarah Zabel ruled that the six same-sex couples could also marry. The plaintiffs: Jorge Isaias Diaz and Don Price Johnston of Miami; 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 LGBT-rights group Equality Florida Institute.
▪ On Aug. 4, Broward Circuit Judge Dale Cohen ruled the law unconstitutional and said he would grant Heather Brassner a divorce from her estranged partner. He vacated his ruling a day before finalizing the divorce because Brassner’s lawyer had not properly notified Florida Attorney General Pam Bondi’s office about the constitutional challenge. Last month, Cohen heard the case again and in four minutes on Dec. 17 granted Brassner a divorce.
▪ On Aug. 5, Palm Beach County Circuit Judge Diana Lewis ordered that W. Jason Simpson be recognized as personal representative of his late husband’s estate. Simpson and Frank Bangor married in Delaware on Oct. 23, 2013. Bangor died March 14 at the couple’s Palm Beach County home. The case marked the first time that any Florida judge recognized an out-of-state same-sex marriage, according to Boca Raton attorney Drew Fein.
▪ On Aug. 21, U.S District Judge Robert L. Hinkle of Tallahassee ruled in favor of LGBT-rights group SAVE and eight same-sex couples represented by the ACLU of Florida: Sloan Grimsley and Joyce Albu of Palm Beach Gardens; Lindsay Myers and Sarah Humlie of Pensacola; Chuck Hunziger and Bob Collier of Broward; Juan Del Hierro and Thomas Gantt Jr. of Miami; Christian Ulvert and Carlos Andrade of Miami; Richard Milstein and Eric Hankin of Miami; Robert Loupo and John Fitzgerald of Miami; Denise Hueso and Sandra Jean Newson of Miami.
Also in the federal case: Arlene Goldberg of Fort Myers, whose wife, Carol Goldwasser, died March 13; a Tallahassee couple married in Canada, James Domer Brenner and Charles Dean Jones; and two men, Ozzie Russ and Stephen Schlairet, seeking a marriage license in Washington County, Florida.
“When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination,” Hinkle wrote in his ruling. “Observers who are not now of age will wonder just how those views could have been held.”
Bondi filed appeals in the Monroe, Miami-Dade and federal cases and the judges in those cases each stayed their decisions. No appeals have been heard and none are scheduled.
Hinkle’s stay expires after Jan. 5. Bondi appealed first to the U.S. 11th Circuit Court of Appeals, then to the U.S. Supreme Court for extensions. Both courts said no.
With the deadline approaching, many county clerks said they would not abide by Hinkle’s order, based on advice from top law firm Greenberg Traurig, which represents the Florida Association of Court Clerks and Comptrollers. On July 1, 2014, Greenberg Traurig lawyers in Tallahassee said clerks who issue licenses to same-sex couples before rulings by the U.S. or Florida supreme courts face “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000.”
After several Florida clerks said they would not abide by the district court ruling until after the Florida or U.S. supreme courts settled the issue once and for all, Hinkle on New Year’s Day announced that any clerk who enforces the state’s same-sex marriage ban would be in violation of the U.S. Constitution and could be sued.
In a statement, Bondi said each clerk could decide what to do.
And Greenberg Traurig reversed itself and instructed the clerks to obey Hinkle’s order or face lawsuits.
“When we look back at this week, five years from now, 10 years from now, the current chaos will matter a lot less,” said Howard Simon, executive director of the ACLU of Florida.
“And whatever may happen with regard to whether we act as one state or 67 separate states, it’s certainly not in question that every couple married elsewhere will be recognized and they become eligible for benefits that strengthen families,” Simon said. “We’re clearly transitioning to a state that will be respecting LGBT equality — at least with regard to marriage.”
Hinkle’s order becomes effective at 12:01 a.m. Tuesday. But same-sex marriage may come to Miami-Dade County a half-day earlier.
On Dec. 22, Miami-Dade Clerk Harvey Ruvin asked Judge Zabel to clarify her order and expedite the case. Late Saturday morning, lawyers for the six couples filed a motion asking Zabel to lift the stay immediately.
“Lifting the stay would be consistent with the actions of the U.S. Supreme Court and federal circuit and district courts in similar cases in which orders striking down state marriage bans have been permitted to go into effect while appeals are pending,” the lawyers wrote.
Zabel has scheduled a hearing in her courtroom for 11 a.m. Monday.
“Why? What is she going to do? Is she going to lift the stay? Is she going to give clarity to the clerk of courts? I don’t know, and we’re all anxiously awaiting,” said Miami-Dade plaintiff Vanessa Alenier. “If she’s holding a hearing, is she going to allow the plaintiffs to apply for a marriage license that day? If she does, great! We’ve been waiting a year to apply for the license. It’s almost exactly a year. The whole thing is exciting and nerve-wracking. I couldn’t sleep after we found out she’s having an emergency hearing. In my head, I have so many questions, why is this happening and what comes next?”
Florida marriage primer
Both would-be spouses must apply for a marriage license in person. There is no residency or citizenship requirement. All applicants must show valid identification. Applicants 16-17 years old must show a birth certificate with parent’s name and a parental consent form.
A deputy clerk can perform a marriage ceremony immediately after the license is issued, if the spouses have taken a four-hour premarital course. There is no other waiting period for those who have taken the course. The courses are given in person and online, and can be completed in one day. Search online: ‘Florida premarital course.’
All Florida residents must take the course, or wait three days for a license to become valid. This does not apply to nonresidents. Marriage ceremonies must be performed within 60 days of a license being issued.
License fees: $93.50 or $61 with completion of premarital course. Ceremony: $30.
Also, LGBT activist group Equality Florida has published a webpage with same-sex marriage questions and answers: www.eqfl.org/marriagefaq