- November 18, 2024
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Flagler County Clerk of Court Gail Wadsworth has never seen a gay couple come to her office for a marriage license, she said. And despite a circuit court ruling issued Thursday that declared the state’s ban on gay marriage unconstitutional and ordered a Monroe County clerk to begin issuing marriage licenses for gay couples, none will be issued in the immediate future.
The office of Florida Attorney General Pam Bondi has appealed 16th Circuit Judge Luis Garcia’s ruling, saying in a public statement that “finality on this constitutional issue must come from the U.S. Supreme Court.” That appeal, Wadsworth said, stays the judge’s order to Monroe County Clerk Amy Heavilin to begin issuing marriage licenses starting July 22.
Before the Attorney General’s office’s announcement that the state would appeal, Wadsworth said, the Flagler County Clerk of Court’s office composed a message for same-sex couples who might come to the clerk’s office seeking a marriage license:
“Although Judge Garcia has ordered in favor of the plaintiffs in Monroe County, that does not change Florida law,” she said. “We will comply with Florida Statute 741 until it is either changed by the Florida Supreme Court or by the state’s legislative bodies. We must abide by Florida law as written.”
The Monroe County case decided by Garcia was brought by Key West residents Aaron Huntsman and William Lee Jones, who have been together for 11 years but were denied a marriage license by the Monroe County clerk. A similar case is pending in Miami-Dade County.
Judge Garcia wrote in his analysis of the case that marriage is a fundamental individual right guaranteed by the Constitution’s due process and equal protection clauses.
He acknowledged that the majority of voters — 62% — endorsed the 2008 Florida Marriage Protection Act, which defined marriage as between one man and one woman.
But, in his opinion, Garcia quoted and bolded the following passage from the decision in W. Virginia State Board of Education v. Barnette: “…fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
“This court concludes that a citizen’s right to marry is a fundamental right that belongs to the individual,” he wrote. “The right these plaintiffs seek is not a new right, but is a right that these individuals have always been guaranteed by the United States Constitution. Societal norms and traditions have kept same-sex couples from marrying, like it kept women from voting until 1920 and forbid interracial marriage until 1967.”
Garcia wrote that the Florida gay marriage ban creates a separate status for same-sex couples and imposes stigma on their relationships, and that as a result of the ban, “numerous benefits are available to married couples that form a safety net for the couples and their children that do not exist for same-sex couples at this time.”
Rabbi Zev Sonnenstein, who leads the congregation at Temple Beth Shalom in Palm Coast, felt that “separate status” when he decided to marry his husband John. They had to go to New York, he said, to have a legal marriage.
“It really made me feel the discrimination, more than I like to admit,” he said. “All of my friends can get married anywhere. I have to be careful where I get married.”
Sonnenstein said he’s “glad that Florida has someone that’s stepping up to the plate” to legalize same-sex marriage.
“Human rights are human rights, that’s what people need to realize,” he said. “We’re all human, we’re all God’s children, and we all deserve the same protection.”
Garcia employed an “enhanced” rational basis standard in examining the claims of the state in the case.
Of the three major types of scrutiny the court can apply when examining a law that might violate the Equal Protection clause — strict scrutiny, intermediate scrutiny or the rational basis test — the rational basis test is the easiest for a government body to prove, requiring only that the government body establish a “rational relationship between the disparity of treatment and some legitimate government purpose,” according to the opinion.
Garcia employed a slightly stricter level of scrutiny, a “heightened rational basis test” used in cases where a court suspects animus against a disadvantaged group, writing that he found animus against gay people in statements of conservative activists permitted to speak on the issue as friends of the court.
But Florida Assistant Attorney General Adam Tanenbaum, speaking for the defense, never actually argued that the Florida Marriage Protection Act has a rational basis or that it serves a legitimate government purpose.
Instead, he argued that the definition of marriage belongs to the state as a result of a 1972 case in which the U.S. Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question.” That outcome, he said, means Florida’s definition of marriage is not subject to judicial review unless the 1972 Baker v. Nelson decision is overturned.
Garcia wrote that the 42-year-old ruling “is no longer binding on lower courts” because there have been “substantial changes in societal views as well as subsequent changes in Federal and state case law” since it was issued.
Only the conservative activists attempted to provide a rational basis before the court, which, according to the judge, they had no legal standing to do.
The activists said, according to the ruling, that “the rational basis for excluding same-sex couples from the institution of marriage … are to encourage procreation, a better environment for children and to preserve the traditional definition of marriage.”
Garcia wrote that banning gay marriage does none of that, and that it harms children of gay couples who lack the legal network of protections afforded to married straight couples.
“The court is aware that the majority of voters oppose same-sex marriage,” he wrote, “but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless, even at the cost of offending the majority.”
To read Garcia's opinion in full, CLICK HERE.
