Gay marriage: Another barrier might fall

The fight to defeat a ban on same-sex marriage in Florida is picking up steam. Namely in South Florida, specifically Miami-Dade County.

On Wednesday, the first significant salvo was fired when six same-sex couples, who in January filed suit in Miami-Dade seeking the right to marry, appealed to Circuit Judge Sarah Zabel to force Clerk of the Courts Harvey Ruvin to immediately issue them marriage licenses.

That scenario is a first for Miami-Dade, but likely the beginning of a flood of similar appeals. Judge Zabel says that she will issue her decision in the near future. Either way, she’ll be automatically appealed.

Ironically, the hearing was held on the very day of the 50th anniversary of the signing of the Civil Rights Act of 1964. In some ways, this new quest is a millennial-age equivalent — and it’s a just cause.

Progress is slowly, but steadily, being made.

Since a landmark Supreme Court ruling last year, bans on same-sex marriage have been struck down by federal courts in Illinois, Indiana, Michigan, Ohio, Oklahoma and Utah.

Even Southern states that 150 years ago shed blood for the twisted right to keep people enslaved, and that 50 years ago strenuously resisted removing the shackles of Jim Crow laws, which the Civil Rights Act unlocked, are among those where same-sex marriage bans have been removed by federal courts: Kentucky, Tennessee, Texas and Virginia.

Wednesday, Judge Zabel heard oral arguments from a team of attorneys representing the couples and gay-rights groups, Equality Florida Institute and the National Center for Lesbian Rights, all seeking to strike down the state’s de facto ban on gay marriage.

They asked that Florida follow the precedent set by the U.S. Supreme Court in its 2013 decision that struck down parts of the Defense of Marriage Act, declaring that prohibiting same-sex marriage is unconstitutional.

Defending the state ban in court for the first time was the office of Florida Attorney General Pam Bondi. Ms. Bondi and Gov. Rick Scott, both Republicans, have downplayed their personal views on gay marriage. Ms. Bondi said in a prepared statement that this is not personal for her. She’s just doing her job.

Fair enough.

Still, in February, U.S. Attorney General Eric Holder issued deftly calibrated guidance that when state laws relate to basic Constitutional issues such as the equal-protection clause, attorneys general should apply the highest level of scrutiny before deciding not to defend them on the grounds that they are discriminatory.

This is not a free pass, but as a result, attorney generals in Nevada, Oregon, Virginia, Pennsylvania, California and Illinois have refused to defend their states’ gay-marriage bans. Attorney General Bondi could have shown the same legal discretion.

She points to the law, which she is sworn to enforce. In 2008, Florida voters amended the state Constitution to define marriage as a union between a man and a woman. Period.

“The voters had the right to adopt this definition of marriage, just as they have the right in the future to change their minds and afford legal recognition to same-sex marriage, should they so choose,” Ms. Bondi wrote.

Still, this tide is turning, sweeping away same-sex marriage bans across the country. Sooner or later, the discriminatory barrier will fall in Florida, too. Judge Zabel could strike the death blow to this regressive law, and she should.