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With two trial court victories under their belts, lawyers attacking Florida’s same-sex marriage ban are stepping up efforts to get a definitive ruling.
On Monday, just as the U.S. Court of Appeals for the Fourth Circuit struck Virginia’s same-sex marriage bar, lawyers for two Key West men who want to marry asked the Third District Court of Appeal to pass the case along to Tallahassee without review.
They foresee the case landing in the Florida Supreme Court anyway and want to get there as quickly as possible. Their hope is they will win a favorable resolution, freeing clerks to start issuing marriage licenses to same-sex couples.
“Every day that goes by, my clients are irreparably harmed by the deprivation of their fundamental rights,” said Bernadette Restivo, managing partner of Restivo, Reilly & Vigil-Farinas in Key Largo. “Because the case will end up at the Florida Supreme Court, our argument is to take it there now.”
Shannon Minter, legal director of the National Center for Lesbian Rights, said his group will make a similar request on behalf of the Miami plaintiffs.
“The issue is so important and the harms that are being caused by Florida’s marriage ban are so serious,” he explained.
The Supreme Court considers emergency requests at any time, and it has the authority to take a case directly without intermediate review but rarely does that. The court is on its annual summer break, issuing its next opinions Aug. 28.
The Restivo firm worked with Equality Florida Institute to help convince Monroe Circuit Judge Luis Garcia that the ban Florida voters passed in 2008 violates the constitutional guarantee of equal protection.
“Whether it is … when Nazi supremacists won the right to march in Skokie, Ill., a predominantly Jewish neighborhood, or when a black woman wanted to marry a white man in Virginia or when black children wanted to go to an all-white school, the Constitution guarantees and protects all of its citizens from government interference with those rights,” Garcia wrote two weeks ago.
Another team of lawyers helped persuade Miami-Dade Circuit Judge Sarah Zabel to reach the same conclusion, in a ruling issued late Friday.
“Preventing couples from marrying solely on the basis of their sexual orientation serves no governmental interest,” she wrote. “It serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens and to deem them unworthy of participation in one of the fundamental institutions of our society.”
Behind The Scenes
The legal team representing the Miami plaintiffs is comprised of two Carlton Fields Jorden Burt partners—Sylvia Walbolt in Tampa and Jeffrey M. Cohen in Miami—solo practitioners Elizabeth Schwartz of Miami Beach and Mary Meeks of Orlando, and Shannon Minter, legal director of the National Center for Lesbian Rights in Washington.
The center may be the anti-ban advocacy group with the broadest reach operating in Florida. Minter said it’s involved in nine of the 80 cases challenging the bans nationwide.
The pro bono lawyers in both South Florida cases, plus another brought by the American Civil Liberties Union of Florida in federal court in Tallahassee, have collaborated informally to reach the same goal. Restivo said she expects they will continue to do so.
Schwartz seconded that. “We’re working together behind the scenes, all of us, to make sure that we’re on the same page.”
On the other side of the fence is Attorney General Pam Bondi, whose office is defending the ban approved by voters in 2008. The point person for the litigation is Chief Deputy Solicitor Adam Tanenbaum of Tallahassee.
In contrast, chief legal officers for seven states, including Virginia, refused to enforce their same-sex marriage bans.
The usually conservative Fourth Circuit ruled Monday that Virginia’s ban “impermissibly infringes on its citizens’ fundamental right to marry.”
“Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance,” Judge Henry Floyd wrote for the 2-1 panel.
Litigators for the plaintiffs in that case were the unlikely pair who helped overturn California’s ban, David Boies of Boies, Schiller & Flexner and Theodore Olson, former solicitor general now with Gibson Dunn & Crutcher.