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Legal challenge could overturn gay-marriage ban in Florida

Six couples file suit in Miami saying ban fosters discrimination and stigma against same-sex couples

Photo: Courtesy of Equality Florida, License: N/A

Courtesy of Equality Florida

Fighting the good fight: (left to right) Stratton Pollitzer, Nadine Smith, Summer Greene, Pamela Faerber, Shannon Minter

Photo: Photo by Carlos Amoedo, License: N/A

Photo by Carlos Amoedo

Mary Meeks

The grounds are that the Florida gay marriage ban violates the equal protection clause of the 14th Amendment of the U.S. Constitution, depriving same-sex couples of their fundamental right to marry and infringing on their constitutionally protected interests in liberty, dignity, privacy, autonomy, family integrity and intimate association.

The legal standard being employed is that the Florida gay marriage ban does not rationally further any legitimate government interest, but serves only to injure and humiliate same-sex couples and their families, and therefore cannot stand the most basic level of constitutional scrutiny. Also, because it discriminates against the plaintiffs on the basis of their sex and sexual orientation – classes subject to historic discrimination – the ban is subject to a heightened level of constitutional scrutiny.

Meeks says that it was the recent Oklahoma ruling on the matter that was the “real trigger” in getting the litigation rolling. Earlier this month, U.S. District Judge Terence Kern came down hard against that state’s marriage ban, one that had passed as a ballot measure 10 years ago with 75 percent of the vote.

“Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class,” Kern wrote in his decision. “It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”

Last summer, immediately following the historic Supreme Court decision, gay activist (and perceived gay activist) groups quarreled over whether a ballot measure initiative aimed at overturning Florida’s ban might be likely to provide more immediate relief than if the organizations jumped through the legal hoops a court challenge presents. Oklahoma, at least to some degree, changed that, even though Oklahoma is not in the clear for marriage equality yet. It waits, along with Utah, for an appeals court to weigh in.

Though Equality Florida has been vetting candidates to be plaintiffs for some time, in part through its “Get Engaged” campaign for marriage equality, the actual case “wasn’t very long in the planning,” according to Meeks. There are many states with pending cases, but the difference with these recent challenges – including Florida’s – is that they include language from the Supreme Court’s decision to challenge state laws, something Meeks thinks most states will employ in the future.

The long view for Florida is likely to involve a drawn-out and costly appeals process. That appeal will have to go to the state level in order for equal rights to apply statewide, with the ultimate goal of marriage equality going back to the U.S. Supreme Court to change the federal law. If Florida’s various jurisdictions rule favorably for the plaintiffs, it sets more precedent to present to the notoriously conservative 11th District federal court in Atlanta. As more states and districts rule favorably, the case will become even stronger when it’s presented on the national stage again.

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