(John Pacenti)

Monroe County moved first in the legal battle over the state’s ban on same-sex marriage, finding the law passed by Florida voters in 2008 is unconstitutional.

Advocates for same-sex marriage in Miami-Dade County, which has its own challenge pending before Miami-Dade Circuit Judge Sarah Zabel, hailed Thursday’s decision as a harbinger of things to come.

Related: Keys Judge Rules Gay Marriage Ban Unconstitutional

“We’re very happy to read this wonderful decision,” said Miami Beach attorney Elizabeth Schwartz, who is one of the lawyers leading a move to overturn the state constitutional ban on behalf of six same-sex couples.

“We’re hopeful that Judge Zabel in the Miami-Dade case will follow suit and that a similar decision will be issued any day now and that we’re getting closer to the day when all loving committed couples in Florida get legally wed,” she said.

Attorney General Pam Bondi’s office wasted no time, filing an appeal Thursday afternoon.

Two federal lawsuits also pending in Florida brought by couples who have been married out of state and want their union recognized by the state.

Coral Gables attorney David Tucker, who gathered signatures supporting the federal judicial nomination of openly gay Miami-Dade Circuit Judge William Thomas, said the Key West decision shows the argument that courts should respect the referendum is specious.

“We had slavery, racial discrimination and more in the country until the courts stepped in,” he said. “The law’s supporters express concern for the ‘sanctity of marriage,’ I really don’t get that. Are straight husbands going to wake up one morning and say, ‘Oh my God, I could have married a guy?’ ”

The ruling by Monroe Circuit Judge Luis M. Garcia in the case filed by the Key Largo law firm of Restivo, Reilly & Vigil-Fariñas ruled the ban effectively made same-sex couples second-class citizens, the same argument before Zabel at a hearing in Miami on July 2.

Equal protection

The lawsuits in Monroe and Miami-Dade counties contend the marriage ban violates the federal 14th Amendment’s guarantee of equal protection under the law.

The decision affects only Monroe County, but a successful appeal to the Third District Court of Appeal in Miami would have wider implications. The judge said marriage licenses could not be issued until Tuesday at the earliest to give the clerk’s office personnel a chance to get ready for the change.

“This is a monumental step forward for Florida. Today’s historic ruling affirms what the majority of Florida residents already know to be true: All couples and their families deserve to be treated equally by their government,” said Nadine Smith, CEO of Equality Florida Institute.

The amendment overturned by Garcia, an appointee of former Republican Gov. Jeb Bush, was passed by a 62-38 margin and banned both same-sex marriage and domestic partnerships. There has been a sea change in public opinion on the issue since then. A recent Gallup poll found support for same-sex marriage at 55 percent, a 15 points increase in five years.

Nineteen 19 states and the District of Columbia have legalized same-sex marriage.

There are over 70 court cases challenging marriage bans across the country in 30 states and Puerto Rico. The challenges came after the U.S. Supreme Court last year struck down the federal Defense of Marriage Act.

“Today’s court ruling in Florida is further proof that America is ready for marriage equality nationwide,” said Sarah Warebelow, legal director of the lesbian, gay, bisexual and transgender civil rights group Human Rights Campaign.


“Unfortunately, same-sex couples in a majority of states still don’t have the right to marry, creating a confusing patchwork of marriage laws across the country. This is not only unsustainable, but it’s also unconstitutional,” she said.

Garcia, in his decision, invoked key U.S. Supreme Court decisions protecting minorities, such as in 1954 when segregation of schools was found unconstitutional.

“The court is aware that the majority of voters oppose same-sex marriage, 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,” Garcia said.

Bondi and other supporters of the ban have argued the referendum outcome should be respected and Florida has the sole authority to define marriage in the state. The Florida amendment defined marriage solely as a union between one man and one woman.

Gay marriage proponents have won more than 20 legal decisions around the country since the Supreme Court struck down DOMA, although those rulings remain in various stages of appeal. Many legal experts say the Supreme Court may ultimately have to decide the question for all states.

Supporters of the gay marriage ban focused mainly on the 2008 referendum rather than whether same-sex marriages were harmful or beneficial. Anthony Verdugo, executive director of the Christian Family Coalition, said it was wrong for a single judge to overrule the will of the majority.

“The people of the state have the right to decide,” he said.

The decision came out the same day Verdugo’s organization hailed a decision by the Miami Shores village council, which rejected a resolution to support the Miami-Dade lawsuit.

‘Judicial lynching’

A release from the Christian Family Coalition called Garcia’s ruling “corrupt” and called for his immediate removal from the bench by the Judicial Qualifications Commission.

“It is a judicial lynching of nearly eight million Florida voters, an assault on democracy, and a brazen violation of the code of judicial conduct and his oath of office,” according to the release.

Florida has long been a battleground over gay rights. In the 1970s, singer and orange juice spokeswoman Anita Bryant led a successful campaign to overturn a Dade County ordinance that banned discrimination against gays. The county commission reinstated the ban two decades later.

Florida in 1977 became the only state that prohibited all gay people from adopting children. A state court judge threw out the law in 2008 when she found “no rational basis” for the ban when she approved the adoption of two young brothers by Martin Gill and his male partner. The state decided two years later not to appeal that ruling, making gay adoption legal.

The Associated Press contributed to this report. John Pacenti can be reached at (305) 347-6638.