MIAMI — Attorneys for gay couples, the state of Florida and proponents of so-called traditional marriage squared off last Wednesday in a lawsuit seeking to overturn a ban on same-sex marriage enshrined in the state constitution by voters in 2008.
Like similar cases filed across the country, the Florida gay couples’ lawsuit contends that the ban is discriminatory and violates the U.S. Constitution’s guarantee of equal protection under the law. Attorney Jeffrey Cohen, representing the six same-sex couples who filed the lawsuit, asked Miami-Dade Circuit Judge Sarah Zabel at a hearing to issue a ruling like those in 21 other cases nationwide declaring the ban unconstitutional.
Cohen noted that Florida allows gay people to adopt children but bars them from taking the final legal step to become a legitimate family in the eyes of the law.
“It’s the right of a person to choose who they love and who they make their future with,” Cohen said. “We should not make anyone a second-class citizen.”
Attorney General Pam Bondi, whose office intervened in the case recently, takes the position that U.S. Supreme Court rulings – including the one last year that struck down the federal Defense of Marriage Act – give states sole power to define marriage. Florida defined it as between one man and one woman in the 2008 voter referendum.
“It remains binding precedent,” said Deputy Solicitor General Adam Tanenbaum.
Zabel did not immediately rule and gave no indication when she would. She took notice, however, of the numerous state and federal rulings striking down gay marriage bans in other states – including one in Kentucky on last Tuesday – since the Supreme Court’s ruling on the federal marriage act.
“What about the flood of cases that has been coming down?” Zabel asked a lawyer for groups supporting the current ban.
The hearing drew a packed crowd into a main courtroom and a spillover room, many of them proponents of gay marriage sporting pictures of adopted children and snapping photos of what many viewed as a historic occasion. There were also those favoring the ban, some wearing American-flag stickers that read “Respect My Vote,” while others prayed and quietly sang hymns. There were also groups of chanting protesters outside the courthouse.
“Peace and love!” shouted opponents of the ban. “Enough is enough!” countered those favoring it.
Attorney Matt Staver of the Liberty Council, representing several groups supporting the traditional marriage definition, urged Zabel not to rule hastily to allow time for more evidence to be gathered. Staver also questioned the legal reasoning of the numerous state and federal judges who have recently voided other gay marriage bans and said society is better off with opposite-sex marriage.
“The optimal environment is the opposite-sex mom and dad. Gender does matter,” Staver said. “Without opposite-sex marriage, there is no procreation.”
There are currently 19 states and the District of Columbia that allow same-sex marriage. Lawsuits challenging bans in all other states are pending, some of them on appeal, and many legal experts say ultimately the U.S. Supreme Court is likely to resolve the issue at some point.
A separate lawsuit filed in federal court in Tallahassee seeks an order forcing Florida to recognize legal same-sex marriages performed in other states. That case is also pending.