Same-Sex Couples Go To Court,
Challenge Barriers To Marriage

by Jay Weaver
May 13, 2004

Four gay and lesbian couples who want to marry filed a suit against the Defense of Marriage Act, starting a process that legal experts say will likely be long and difficult.

In what is likely to become a legal marathon, four gay and lesbian couples stood together on the steps of the Miami federal courthouse Wednesday to start their challenge to U.S. and Florida laws that stop them from getting married.

The couples filed what could be the first lawsuit against the Defense of Marriage Act passed by Congress in 1996 and adopted in some form by 38 states, including Florida. They argue that the U.S. and Florida laws violate constitutional rights of due process, privacy and liberty by treating them as "second-class citizens".

They want the same legal protections afforded to married heterosexual couples - in life as well as death.

"We're not asking for our rights, we're demanding them," said Cynthia Pasco of South Miami-Dade County, standing with her partner, Erika Van der Dijs. "We're no different from any other American couple."

Their suit pushes Florida further into the national spotlight on same-sex marriage, which has emerged as a political litmus-test issue from California to Massachusetts. Gay and lesbian couples have joined legal battles to overturn same-sex legal bans in a half-dozen states - emboldened by the U.S. Supreme Court's watershed 2003 decision that struck down state sodomy laws as demeaning to homosexuals.


TEXAS CASE

In a 6-3 vote in a Texas sodomy case, the high court ruled that the government had no authority to regulate the sexual behavior of "consenting adults acting in private". In response to the majority opinion, Justice Antonin Scalia issued a scathing dissent, saying it threatens a "massive disruption of the current social order". But gays and lesbians perceived that decision - and Scalia's rhetoric - as the first real opportunity to challenge Defense of Marriage Acts across the country.

The federal law defines marriage as "only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife". It requires states with such a law to reject civil marriages allowed in other states.

Miami lawyer Ellis Rubin, who filed the federal suit on behalf of the four gay and lesbian couples, said: "I wanted to come into federal court and test this 1996 law. No one has ever challenged it before."


OUTLOOK FOR LAWSUIT

Legal experts say the federal suit - along with state complaints filed in Fort Lauderdale, Key West and other cities nationwide - will face a difficult, if not impossible, journey in the courts.

Constitutional-law scholar Susan Low Bloch, a professor at Georgetown University Law School, said the federal suit may not be winnable.

"I think that states may have some justification for denying those rights," she said. "States could say there is a government interest in the traditional nuclear family of a [heterosexual] man, woman and children because it has been historically recognized by society and they want to maintain that."

The four couples sought out Rubin to file their federal case after they had learned about his state complaint in Fort Lauderdale earlier this year. Denied marriage licenses in Miami-Dade, they sued Clerk of the Circuit and County Courts Harvey Ruvin, Florida Gov. Jeb Bush and state Attorney General Charles Crist and U.S. Attorney General John Ashcroft.

"We've always wanted to legally marry," said Michael Solis of North Miami Beach. His partner, Jesus Carabeo, added: "I think we should have the same rights as anyone else. . . . It's long overdue."