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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO. 2014-1661-CA-01
CATHERINA PARETO and KARLA
ARGUELLO; JUAN CARLOS RODRIGUEZ and
DAVID PRICE; VANESSA ALENIER and
MELANIE ALENIER; TODD DELMAY and
JEFFREY DELMAY; SUMMER GREENE and
PAMELA FAERBER; DON PRICE JOHNSTON
and JORGE DIAZ; and EQUALITY FLORIDA
INSTITUTE, INC.,
Plaintiffs,
vs.
HARVEY RUVIN, as Clerk of the Courts of
Miami-Dade County, Florida, in his official
capacity,
Defendant.
_____________________________________/
HEARING RE:
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
- - -
The above-entitled cause came on for
Hearing before the HONORABLE SARAH ZABEL, at the
Miami-Dade County Courthouse, 73 West Flagler Street,
Courtroom 6-1, Miami, Florida, on Wednesday, the 2nd day
of July, 2014, scheduled for 4:00 p.m., commencing at
4:03 p.m. to 5:44 p.m.
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APPEARANCES:
ON BEHALF OF THE PLAINTIFFS:
CARLTON FIELDS JORDEN BURT, P.A.
BY: SYLVIA H. WALBOLT, ESQ.
BY: JEFFREY MICHAEL COHEN, ESQ.
ON BEHALF OF STATE OF FLORIDA:
HARVEY RUVIN, CLERK
OFFICE OF THE ATTORNEY GENERAL
BY: ADAM TANENBAUM, ESQ.
ON BEHALF OF HARVEY RUVIN and THE CLERK OF COURT:
HARVEY RUVIN, CLERK
BY: LUIS G. MONTALDO, ESQ.
BILZIN SUMBERG
BY: EILEEN MEHTA, ESQ.
ON BEHALF OF CITY OF MIAMI BEACH, CITY OF ORLANDO,
VILLAGE OF KEY BISCAYNE:
BY: ROBERT F. ROSENWALD, JR., ESQ.
NICK KALLERGIS, JR., ESQ.
ON BEHALF OF FLORIDA FAMILY ACTION, FLORIDA DEMOCRATIC
LEAGUE, PEOPLE UNITED TO LEAD THE STRUGGLE FOR EQUALITY:
LIBERTY COUNSEL
BY: MATTHEW D. STAVER, ESQ.
ON BEHALF OF CHRISTIAN FAMILY COALITION:
ALEXANDER J. ALFANO
BY: ALEXANDER J. ALFANO, ESQ.
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APPEARANCES (continued)
ON BEHALF OF THE PLAINTIFFS:
CARLTON FIELDS JORDEN BURT, P.A.
Nancy J. Faggianelli, Esq.
Cristina Alonso, Esq.
Justin S. Wales, Esq.
Edith G. Osman, Esq.
MARY MEEKS, P.A.
Mary Meeks, Esq.
ELIZABETH F. SCHWARTZ, P.A.
Elizabeth F. Schwartz, Esq.
NATIONAL CENTER FOR LESBIAN RIGHTS
Shannon P. Minter, Esq.
ON BEHALF OF INTERVENOR:
FLORIDA FAMILY POLICY COUNCIL
John Stemberger, Esq.
GLENDA M. POWERS
Registered Professional Reporter
Certified Realtime Reporter
Florida Professional Reporter
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P R O C E E D I N G S
- - -
THE BAILIFF: All rise, please.
THE COURT: Thank you, everyone.
Everyone can take a seat. All right.
Good afternoon, everyone.
(Collective greeting responses from counsel
and courtroom attendees.)
THE COURT: Thank you. Okay. I'm going to
try and speak from the diaphragm. I just want this
to be orderly and everybody, please, to be
respectful and mindful of the time that we have.
I know, originally, it was supposed to be for
an hour, so I believe my judicial assistant reached
out to everyone.
The first hour, I'll hear from the parties.
And the second hour, I'll hear from everyone
else with amicus and make sure everybody has a
voice, and then we'll see how time goes.
But just, please, be mindful of the time.
Also, I would ask you, except for the media,
and this goes to everybody in the audience, is to
please not to take any pictures with your cell
phones, and I would appreciate that. Thank you.
And also, during the course of this hearing,
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please don't get up and leave and go inside and out
of the courtroom. It will be distracting for me
and for everybody who is presenting to me today.
Does everyone understand?
(Collective "yes" responses from counsel
and courtroom attendees.)
THE COURT: Okay. Thank you.
I appreciate your patience, and you may
proceed.
MS. WALBOLT: Thank you, Your Honor.
THE COURT: Hi. Good afternoon.
MS. WALBOLT: I'm Sylvia Walbolt from Carlton
Fields, and with my partner, Jeff Cohen, we will be
presenting the argument on behalf of the plaintiffs
in support of their motion for summary judgment.
Mr. Cohen will present rebuttal at the end of
our hour.
THE COURT: All right. Thank you.
MS. WALBOLT: And I'll try to be brief,
Your Honor.
THE COURT: All right.
MS. WALBOLT: I'm going to cite and quote from
a number of decisions, all of which are fully cited
in our papers that have been filed since the
inception of this case.
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And I want to start with the Meyer case, in
which the United States Supreme Court described
marriage as a "fundamental right of liberty."
And a number of years later, in Loving, the
court declared that "Marriage is one of the basic
civil rights of man, a fundamental freedom."
Most recently, and invalidating the Federal
Defense of Marriage Act, the Supreme Court
specifically talked about the right of marriage in
terms of the status of immense import that it
provides the legal acknowledgement of the intimate
relationship of the two people, and the fact that
the rights and responsibilities of marriage
enhanced the dignity and integrity of the persons.
Now, the Supreme Court, in Windsor, said that
the essence of DOMA was to create inequality with
respect to the right to marriage.
And the Court said, in the strongest of terms,
that that inequality demeans and burdens same-sex
couples in numerous ways, some mundane, some
profound, and it humiliates their children and
stigmatizes them.
And the Supreme Court said that DOMA was
"unconstitutional" -- and I'm quoting --
"deprivation of the liberty of the person protected
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by the due process clause of the Fifth Amendment."
And, of course, that due process clause is
carried into the 14th Amendment with respect to
State laws, such as we are here about today.
We submit that the State's reliance on
pre-Windsor cases and on dissents in Windsor, fails
in light of the majority opinion in Windsor and its
progeny.
Every decision since Windsor -- and we're now
up to 21 decisions, including the Tenth Circuit
last week, Federal, Tenth Circuit Court of Appeals,
and just yesterday, a Federal District Court in
Kentucky.
And every single one of those decisions has
held that it is unconstitutional to treat this
particular class of person unequally with respect
to the right of marriage that other couples are
permitted to enjoy under the state law.
And we have prepared, Your Honor, if I could
have my assistant -- handing you...
THE COURT: All right.
MS. WALBOLT: We prepared a list of all --
THE COURT: Thank you, assistant.
MS. WALBOLT: -- of the cases with the
citations, as of --
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THE COURT: Let me ask -- I'm sorry to
interrupt you.
MS. WALBOLT: Yes.
THE COURT: What standard of review are you
using? Is it heightened scrutiny or rational
basis?
MS. WALBOLT: Which case? I'm sorry.
THE COURT: Are you using -- is it based on
heightened scrutiny? What test are you using here?
MS. WALBOLT: Our position -- and I'm very,
very deaf, so I'm not --
THE COURT: Maybe I should speak up.
MS. WALBOLT: I have a hard time hearing.
THE COURT: That's all right.
MS. WALBOLT: The cases, if you're asking
about the decisions, have varied in how they have
handled it, the test.
Windsor never gives a test at all. It just
talks about giving careful consideration.
The Tenth Circuit, in the Kitchen case -- and
we filed that as a supplemental authority -- used
strict scrutiny finding that there was a
fundamental right to marriage.
The decision yesterday, the Kentucky case,
said we're just going to -- I'm just going to apply
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a rational basis; and it doesn't, can't survive
even a rational basis.
So our position, Your Honor, is that under any
test, any one of these tests, including rational
basis, that this marriage ban in Florida is
unconstitutional.
And its unconstitutional for all of the
reasons that are articulated, not only in those
decisions that are set forth on the handout we've
just given, they're unconstitutional under the
Florida precedents that we have cited that address
the rights of gays and lesbians.
Today same-sex marriages -- same-sex
relationships are completely lawful, and they're
entitled -- contrary to what was the case many
years ago -- they're entitled to the full
protection of the Constitution.
In Florida, and of particular importance to
this case, in Florida, gays and lesbians have a
lawful right to adopt and rear children.
And we know that from the Third District's
decision that was cited with approval by the
Florida Supreme Court in its later decision in DMT.
And I suggest to this Court that there is
simply no way to square the lawful right of
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same-sex couples to adopt and rear children with a
denial to them and to their children of the
multitude of rights and benefits that are
universally recognized to flow from marriage.
That inequality stigmatizes these couples and
their children as "second-class citizens," and
that's how the Windsor Court -- that's the
phraseology the Windsor Court used, "second-class
citizens."
And we know, again, from the Third District's
decision striking the ban -- Florida's ban -- on
adoption by gays and lesbians, the Court there
cited Florida Supreme Court precedent saying that,
quote, "The reason for the Equal Protection Clause
was to assure that there would be no second-class
citizens."
The post-Windsor decisions that we have cited
and brought to the Court's attention -- through a
variety of notices of supplemental authority and in
our brief -- have all concluded that none of the
supposed governmental interests in procreation and
parenting are sufficient to justify such inequality
with respect to marriage, and we urge this Court to
so rule as well.
THE COURT: Let me address the Supreme Court
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ruling in DMT versus TMH in December of 2013 --
MS. WALBOLT: Right.
THE COURT: -- where the Court -- and I have
the decision in front of me -- where the Court
specifically says: "Sexual orientation has not
been determined to constitute a protected class
and, therefore, sexual orientation does not survive
an independent basis for using heightened scrutiny
to review State action that results in unequal
treatment to homosexuals." And it does cite Romer.
MS. WALBOLT: You're, obviously, correct,
Your Honor, and that's what the Court said there.
I would point out that that case did not involve
the right to marriage, which, we submit, is a
fundamental right.
And earlier in the decision the Supreme
Court of Florida specifically talked about giving
strict scrutiny to fundamental rights.
And I commended to Your Honor -- I quoted
Loving and Meyer. But I commend to you the Tenth
Circuit's decision, it's a 60-page decision, and
it's extremely carefully reasoned and carefully
detailed, and they -- that Court gives very cogent
reasons why it finds a fundamental right to
marriage after Windsor and applies a heightened
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scrutiny to it. And I commend that very, very
well-reasoned decision to the Court.
But I suggest, as I said, and as we've said in
our papers, we think under any tests that the Court
could apply, whether it's strict scrutiny, careful
consideration, quasi-suspect group -- which is what
yesterday's decision talks about --
THE COURT: The Windsor.
MS. WALBOLT: -- under any of those, there's
no rational reasons for this.
And it's for the same reason that the Third
District said there's no rational reason to ban
same-sex couples from adopting children.
And I submit to this Court that that decision
of the Third District, which has been cited with
approval in the DMT case by the Florida Supreme
Court, utterly destroys any notion that parenting
skills or ability can possibly provide a proper
governmental interest in precluding marriage by
same-sex couples.
It simply can't be said that lawfully-adopted
children of same-sex couples are unworthy of the
same rights and benefits of marriage that -- of
marriage by their parents, their lawful parents,
that children of opposite-sex couples have under
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Florida law.
And I submit that the interests of those
adopted children in those rights and benefits in
marriage should be protected by the State, not
discriminated against.
And in the Third District's decision striking
a ban on adoptions by gays and lesbians, the Third
District quotes at great length, with approval, the
trial court's findings in that case that --
THE COURT: That was Judge Lederman's finding;
is that correct? Judge Lederman?
MS. WALBOLT: It's the In Re Matter: Adoption
of XXG. It's 45 So.3d 79, at 79 --
THE COURT: All right.
MS. WALBOLT: -- it's a 2010 decision,
subsequently, quoted with approval by the Florida
Supreme Court in DMT.
And in that case, the Third District cites at
great length from the trial court's findings there
that there is a body of broad -- a broad body of
research -- that shows -- and I'm quoting:
"That there are no differences in the
parenting of homosexuals for the adjustment of
their children."
And the Court goes on to cite all of the
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various associations that have accepted that body
of research.
And then quotes the trial court's finding
that: "Based on the robust nature of the evidence
available in the field, this Court is satisfied
that the issue is so far beyond dispute that it
would be irrational to hold otherwise."
And the Third District then goes -- after that
long quote, then goes on to say this finding
coincides with the agreement of the Department --
Florida Department of Children and Families in that
case that, "gay people and heterosexuals make
equally good parents."
And the Third District goes on then to discuss
the trial judge's -- and affirm the trial judge's
rejection of the studies that had been presented --
just as they have been in this case by the amici --
that suggest that same-sex couples are not good
parents, they're not good parenting skills,
including, I might say, the studies of Dr. Regnerus
that have been presented to this Court.
And I suggest that, given the Third District's
embracing of this notion that there can be no basis
for precluding adoption of children by same-sex
couples, based on some supposed lack of parenting
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skills, that ends the issue of whether that can be
somehow then, nonetheless, a basis for precluding
marriage by the people who have adopted these
children.
And so we suggest that that -- that decision
of the Third District, coupled with the decision of
the Supreme Court in DMT, which recognized the
rights there of the same-sex couple to the child,
that was the biological child of the woman, and
then was born to the birth mother, given those
decisions, parenting simply cannot be a basis to
justify Florida's marriage ban; nor as all of the
decisions that have addressed this point since
Windsor have concluded, can procreation be a
legitimate governmental interest in the ban.
The Second Circuit squarely addressed this
point when it struck DOMA and Windsor. And it made
the point that prohibition on same-sex marriages
does not increase procreation by opposite-sex
couples. And by the same token, allowing same-sex
marriages in no way decreases procreation by
opposite-sex couples.
And that decision of the Second Circuit was,
of course, affirmed by the United States Supreme
Court.
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But in all events, and again, the courts that
have addresses this have emphasized this point.
The States don't require persons to be able to
have natural-born children in order to obtain a
marriage license. Women, elderly women can get
married, opposite-sex couples can marry, even if
they can't, for whatever reason, naturally bear
children, and --
THE COURT: Or decide not to have children.
MS. WALBOLT: Say again?
THE COURT: Or decide not to have children.
MS. WALBOLT: Or to exercise, and that's --
several of the courts have said that -- or to
exercise a constitutional right not to have
children.
And, in fact, I commend the Court the Tuner
case, where the Supreme Court specifically held
that it was unconstitutional for a State to
preclude prisoners from marrying, even though they,
obviously, could not have the type of intimacy that
would be required to conceive a child.
So I suggest that neither of the purported
bases that have been suggested are sufficient to
justify this ban. And it's clear under Supreme
Court precedent, such as Loving and Windsor itself,
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that tradition and moral judgments are legally
insufficient to justify it either.
At bottom: Just like DOMA, Florida's marriage
ban is intended to impose inequality on one class
of citizens. It's intended and does make them
second-class citizens, and that's precluded by the
Equal Protection Clause.
The United States Supreme Court declared in
Romer, "central" -- quote -- "to our own
Constitution's guarantee of equal protection is the
principle that government and each of its parts
remain open on impartial terms to all who seek its
assistance."
That is why, again, I quote, "Why laws
singling out a certain class of citizens for
disfavored legal status," end quote, constitute a
"denial of equal protection in the most literal
sense."
So for all the reasons set forth in the
decisions invalidating DOMA and invalidating
marriage bans of other states; after Windsor, and
in the amicus briefs that were filed in support of
plaintiffs' effort to end the discrimination
against them with respect to the legal status in
marriage, we ask this Court to rule the ban is
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unconstitutional.
And I want to end by -- I said it would be
brief, Your Honor.
THE COURT: That's all right.
MS. WALBOLT: I want to end by addressing the
State's argument that Baker -- the Supreme Court's
decision in Baker establishes that there is no
substantial Federal issue here.
The State ignores that Baker was similarly
raised in Windsor, and it was expressly rejected by
the Second Circuit, which was, of course, affirmed
by the United States Supreme Court, without any
suggestion that Baker precluded its decision.
Baker has been consistently rejected after
Windsor as a basis of upholding marriage bans,
including, again, by the Tenth Circuit last week
and the Federal District Court in Kentucky
yesterday.
THE COURT: It's in Love versus Beshear, I
believe? Love versus Beshear?
MS. SCHWARTZ: Yes.
MS. WALBOLT: Yes. I'm sorry.
THE COURT: That's all right. That was the
Kentucky case. It's interesting, and I'll speak to
the State regarding this, it's interesting and I
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have it highlighted, and you mentioned Baker and in
the decision in the Love case -- not Loving, but
Love -- the judge specifically wrote in his
opinion, citing Baker, saying, "Today it is
difficult to take seriously the argument that Baker
bars plaintiffs' challenge."
So, I'm guessing, you agree with that?
MS. WALBOLT: Your Honor, I think it's very
simple. My answer to Baker is very simple. Baker
is a 1971 decision. And there have been a tidal
wave of doctrinal developments with respect to the
rights of gays and lesbians since then, including
Lawrence, which recognized a fundamental right of
privacy of gays and lesbians through their intimacy
in the privacy of their home.
THE COURT: You used the word -- I'm sorry to
interrupt you. You used the word "tidal wave," and
that's the exact wording that was used in Love.
MS. WALBOLT: And that's -- the Tenth Circuit
used that word. But I suggest it's not just the
Federal courts that have recognized that.
And I would, again, return to DMT, where the
Florida Supreme Court explained to me -- DMT was
the kind of case that when I went to law school, I
would never -- you know, back in the '60s and
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everything -- I would never have been able to ever
imagine the fact situation that was presented to
the Supreme Court there.
And then the Court comments on that and says:
"The legal parameters and definitions of parents,
marriage and family have undergone major changes in
the past several decades."
And I submit that, Your Honor, no one can read
the soaring, eloquent words of the Court's opinion
in Windsor regarding the importance of marriage,
rights, and benefits to all committed couples and
to their children, and seriously suggest that
inequality in the right to marriage raises no
substantial Federal question in 2014.
We ask this Court to remove this inequality,
to grant summary judgment to plaintiffs,
invalidating Florida's ban on same-sex marriage,
and thereby allow plaintiffs to enjoy the full
protection of Florida's marriage laws, rather than
leave them as strangers to each other in the eyes
of the State. Thank you.
THE COURT: Whether they have children or not.
MS. WALBOLT: Whether they have children or
not; just like opposite-sex couples have the right
to marry, whether they're going to have children or
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not. Thank you, Your Honor.
THE COURT: Thank you very much. All right.
Good afternoon.
MR. TANENBAUM: Good afternoon, Your Honor.
Adam Tanenbaum from the Office of the Attorney
General for the State of Florida.
May it please the Court.
THE COURT: Thank you. Can I address
something in your response? It's interesting that
in your response that you never cited Loving.
Why is that?
MR. TANENBAUM: Because it's not -- that was a
race case that doesn't apply here, Your Honor.
And I was going to open, Your Honor, by noting
that we did file a memorandum of law, as the Court
has acknowledged, last week.
We primarily rely on the arguments that were
made in that memorandum. I was here to highlight a
couple key points that we made there.
And I was going to start by noting Baker -v-
Nelson, which, conveniently, was the last case
discussed by the Court during the plaintiffs'
argument.
Your Honor, in that case, the United States
Supreme Court unanimously determined that the
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definition of marriage that's at issue here does
not implicate the Federal due process clause or the
Equal Protection Clause of the 14th Amendment.
In the ensuing four decades --
THE COURT: I'm sorry to interrupt you.
So let's transport ourselves to 1967 in Loving
versus Virginia. How are those arguments any
different than they are today?
MR. TANENBAUM: Your Honor, in 1967, Loving
was -- came out as a decision. Notably, Baker came
out five years after that, which indicates that the
United States Supreme Court -- when addressing the
definition of marriage here at issue, that the
United States Supreme Court determined that that
was deserving of different treatment.
THE COURT: But all these cases that are
coming out recently are all citing Loving.
MR. TANENBAUM: Those cases -- the cases that
are coming out are now deciding that they don't
feel that Baker -v- Nelson any longer applies.
I will note for the Court that before Windsor
last year, numerous Federal appellate and State --
excuse me -- numerous Federal appellate and trial
courts determined that Baker -v- Nelson precluded
the very arguments that are being made here, the
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assertion of the Federal rights being asserted
here.
Including Judge Moody in the Middle District
of Florida, in 2005, said exactly that: That under
Baker -v- Nelson, which he's bound to follow,
precluded the assertion or the consideration of the
due process for equal protection arguments.
Your Honor, Baker -v- Nelson has not been
receded from by the United States Supreme Court,
has not been overruled by the United States Supreme
Court. It remains binding precedent on this Court.
It remains binding precedent on every lower court
that is considering the Federal arguments that are
being made here.
THE COURT: How does Windsor change the
culture of today based on all the cases that are
coming down?
MR. TANENBAUM: Your Honor, the voters in 2008
made it a policy decision -- which they had a right
to do -- as to what the definition of marriage
should be in the State of Florida. They have that
right, and it's not for this Court to second-guess
or make a determination whether that was a good
policy or a bad policy.
It remains for this Court simply to follow
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what is binding, legal precedent from the United
States Supreme Court and not to guess as to what
the Supreme Court may or may not do in the future
with respect to Baker.
It is not for this Court to decide whether the
Supreme Court has overruled Baker by implication.
And we've cited a case or two in our memorandum
with respect to that, including Agostini.
So, Your Honor, what remains for this Court to
do is to simply follow binding precedent, which is
Baker -v- Nelson, and reject and deny the
plaintiffs' summary judgment motion and uphold the
statute, the constitutional provisions that are
being challenged here.
Thank you, Your Honor.
THE COURT: Thank you.
Does the Clerk have anything to say?
MR. MONTALDO: Yes, Your Honor, the Clerk
does.
THE COURT: Okay.
MR. MONTALDO: If it please the Court, Luis
Montaldo on behalf of Harvey Ruvin and the Clerk of
the Court, and my co-counsel, Eileen Mehta.
Your Honor, the Clerk, as far as the marriage
of the case, the Clerk continues his neutral,
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ministerial position, as he has from the inception
of this case. And that position is well addressed,
I believe, in the affidavit filed by Clerk Ruvin.
But briefly, the Clerk's neutrality as a
ministerial and constitutional officer, as an arm
of Court, is essential. It's essential because the
Clerk is called on to follow, quite literally,
hundreds of laws as a ministerial, constitutional
officer.
If the Clerk decided that he had the authority
to question certain laws and the validity of those
laws, whether he was in favor or against them, and
questioned whether or not he should follow them on
a daily basis, basically, what we would have is
chaos and clerks making decisions on their own.
So the Clerk, obviously, does not have the
authority to choose which laws he will follow and
which laws he won't follow, whether or not he will
follow the statute, or whether or not he would
follow a court order.
The Clerk receives dozens of orders from the
Court on a daily basis, and the Clerk, as an arm of
the Court, has to follow the orders of the Court.
The Clerk doesn't sit in a appellate capacity
in the arm of the Court. So those are things that
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we wanted to make clear and we believe are clear in
the Clerk's affidavit that he's filed. And that's
the position that he's taken as a neutral,
ministerial officer.
That said, we would raise two issues that we
believe are very important to the Court. The Clerk
wouldn't want to be presumptuous and take a
position on whether the Court is going to make a
ruling in favor, or against, in this case.
But if the Court were to rule in favor of the
plaintiffs and grant them the relief that they're
requesting, there are two issues which would be
very important to the Clerk, which the clerk would
want to raise at this point in time rather than a
future time.
And those issues refer to the form of the
license as provided to the Clerk of Courts by the
Florida Department of Health and Bureau of Vital
Statistics, and the provisions in Florida Statute
741.05, which address, I'll call them the
misdemeanor provisions, which specifically make it
a misdemeanor for the Clerk or any of its deputies,
in this case, to issue a license.
As far as the issue of the form, the Clerk in
a notice of filing -- correct, Your Honor -- we
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filed yesterday for the convenience of the Court
and for the parties involved, wanted to put in the
record which -- you know, what the form is of the
license that the Clerk has.
THE COURT: That's right. And just to -- it's
interesting, too, highlight the portion of their
license to marry, where it says, "signature of
Court, Clerk or Judge."
MR. MONTALDO: Correct, Your Honor.
And that's consistent with the position that
the Clerk has taken from the inception, which is
that the Clerk acts the same way that the Judge
could act, as an arm of the Court, in a judicial
capacity -- quasi-judicial capacity in this case.
But that's the position that the Clerk is in.
So when looking at the form like this, there
are issues that stand out and issues that have come
to, I think, to light in different states, and they
would apply to this form as well.
If you look at the form, Your Honor, you will
see that there are areas that indicate, for
example, groom's name, or bride's name, or maiden
name. So these are issues that the Clerk, as a
neutral, ministerial officer, does not have the
authority on his own volition to change the form as
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he sees fit, he or she would see fit.
The Clerk would seek some type of instruction
from the Court, if the Court decided to rule in
favor of the plaintiffs, if the Court decided to
ask the Clerk to issue a license in this case, the
Clerk would seek some kind of instruction on how to
use that form; whether it's use the form as-is,
whether it -- for example, there are other states,
I believe the City of -- State of New York,
San Francisco, those forms, for example, have some
spaces where they would say "spouse and spouse,"
instead of "bride and groom." These are more
gender-neutral terms that could apply.
Those are the type of issues that would come
up in the issuance of a license and the Clerk would
seek the Court to address.
The second provision, Your Honor, that we
would bring up is the misdemeanor statute, and I
was going to have my co-counsel address that, as
far as the applicability, if Your Honor's...
THE COURT: Sure. Thank you very much.
MS. MEHTA: Thank you, Your Honor.
I'm Eileen Mehta. And again, I'll start by
reiterating what my co-counsel said. We don't mean
to be presumptuous, but we do have this issue with
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regard to the Statute 741.05; that the plaintiffs
in this case has attacked three separate provisions
of Florida law, 741.212, 741.04, and the
constitutional provision, and they're asking that
you declare those provisions unconstitutional and
that you require the Clerk to issue marriage
licenses.
They have made no mention of 741.05, which
makes it a misdemeanor for the Clerk to issue such
a license in violation of those sections of the
law.
In the case of Smith versus Wright, an
Arkansas case, a similar circumstance arose. And
in that circumstance the Arkansas law was declared
unconstitutional, but it turned out that the lower
court did not address the provision of state
statute which prohibited the Clerk from issuing
such a license.
When the matter went up to the Arkansas
Supreme Court, the Supreme Court said, well, the
lower court didn't really address that issue, so,
therefore, we're going to remand it back down to
the trial court in order for that issue to be
addressed.
And I can hand a copy of the case to the
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courtroom deputy.
The reason that we bring this up now is
because we have a circumstance where the State of
Florida is now before the Court.
If the Court were inclined to issue
instructions to the Clerk, saying issue such
marriage licenses in the same order that you could
instruct the State of Florida and the Attorney
General not to enforce 741.05, we, quite candidly,
have deputy clerks and employees of the Clerk's
office who are concerned that they might be subject
to arrest and being charged with a misdemeanor for
doing more than obeying an order of the Court.
If your order were to be comprehensive, we
would not have that ambiguity and, certainly, we
would not have that risk, such as occurred in the
Arkansas case, where a higher court might say, for
example, that it hadn't been addressed to us.
So we bring that to your attention and ask
that you keep that in mind as you contemplate your
decision in this case. Thank you.
THE COURT: All right. Thank you very much.
All right. Plaintiff? Good afternoon.
MR. COHEN: May it please the Court.
I'm Jeff Cohen from Carlton Fields Jorden
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Burt, and I am here as co-counsel for the
plaintiffs.
It's fitting, I think, that we're here to
argue this very, very significant issue on the 50th
Anniversary of the civil rights bill that was
enacted by Congress.
There are also two days from the birthday of
our country, a country that was founded with the
concept of liberty, freedom and equality of all of
our citizens.
And that is all that we seek today.
I want to respond first to what the Clerk has
said. I'm sure that the form of the license is
something that can be straightened out. We used to
have something called "white out" before computers,
and I think that the Clerk and all of his fine
folks, together, with the guidance from the Court,
can make sure that that is handled appropriately.
THE COURT: I would like to address, with all
due respect to the Clerk's office, the State's
position regarding Baker.
MR. COHEN: Baker, Your Honor, is essentially
been rejected by 21 cases that have considered this
issue since Windsor. They have all, essentially,
referred -- either ignored it entirely or referred
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to the doctrinal changes that have occurred since
Windsor -- excuse me -- since Baker.
Baker, of course, was not an opinion of the
Supreme Court. It was simply a denial of
jurisdiction. And it stands for the fact that that
law is what it is, but they chose not to change it,
but it doesn't say exactly what the law is.
Those 21 cases that have been decided since
Windsor clearly find -- and some discuss it quite
explicitly -- find that Baker is no longer the law
of this country because of the doctrinal changes
that have occurred in our country since that case
was decided.
So my answer to Your Honor is, Baker just
doesn't count anymore. And some of the cases that
we cited to the Court say that expressly.
What I'd like to do is to sum up what -- sort
of what everyone has said and put this issue that
the Court has to consider in perspective.
We know, it's the law of this country, that
intimate sexual relationships between same-sex
couples are constitutionally permitted. That was
established in Lawrence versus Texas.
And the Court -- the Supreme Court said gay
persons are entitled to respect for their private
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lives. The State cannot demean their existence or
control their destiny by making private sexual
conduct a crime.
There is no legitimate interest, no legitimate
State interest in intervening in the personal lives
of those individuals. We also know that in
Florida, and elsewhere, certainly in Florida, that
gay or lesbian individuals or same-sex couples may
adopt children.
We know that because of the XXG case, which
Mrs. Walbolt referred to, and that came after a
trial before Judge Lederman where she made
exquisite findings as to the suitability, if you
will, of same-sex couples or gay or lesbian people
to raise children.
And she found after a full trial that there
are no differences in the parenting of homosexuals
or the adjustment of their children. And she said
it would be irrational to hold otherwise.
She said that gay people and heterosexuals
make equally good parents. And she rejected every
other attempt to distinguish between parents who
were gay and parents who were heterosexuals and
found no difference, no reason for Florida to ban
gay individuals or same-sex couples from adopting
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children.
She said that the appellate court when they
got that said that the Equal Protection Clause of
our Constitution assures that there are no
second-class citizens.
That case was revisited by a Florida Supreme
Court in the DMT case. And in there, the Court
found that -- and cited Loving, which Your Honor
referred to -- that held that a State ban on
interracial marriage was unconstitutional and
recognized the fundamental right to be a parent,
even for unmarried couples.
And in that case the Florida Supreme Court
quoted Windsor and said that the United States
Supreme Court has recently declared that many
states have extended the definition of family to
permit the legal marriage of same-sex couples.
Federal law may not infringe upon the rights
of those people to enhance their own liberty and to
enjoy protection in personhood and dignity. The
Constitution neither knows, nor tolerates, classes
among individuals.
Interestingly, the Florida Supreme Court kind
of wound up its decision by saying, "We conclude
that the State would be hard-pressed to find a
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reason why a child would not be better off having
two loving parents, regardless of whether or not
they were of the same sex, much better than one."
That's the law of Florida.
Now, as a result of these cases, it is the law
of Florida that same-sex couples have a
constitutionally-protected right to be together.
And they have a constitutionally-protected right to
raise children. They are, in essence, a family.
They are a family just like the people down
the street. They come home, they go to work, they
live together, they have fun, they love each other,
they take care of each other. They are a family.
Except in the eyes of the law.
In the eyes of the law, they are second-class
citizens. That is not a tolerable situation in
today's world in this State.
Since Windsor, we've told you there have been
21 states -- 21 decisions, rather, dealing with the
State's power to ban same-sex marriage or to refuse
to recognize lawful marriages from other states.
And the arguments of our opponents, the
arguments of some of the amici have been
unanimously rejected, not a single State -- or not
a single decision has followed Baker, not a single
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decision has upheld that rule.
That's more persuasive than anything I could
say to you. All of those judges, all of those
courts, have held that the right to be married is a
constitutionally-protected right, irrespective of
this gender of the people who want to get married.
Florida deserves to join those other states.
We should not make our citizens legally
second-class citizens.
We've talked a little bit about marriage and
how important it is. I'd like to read a little
quote to you.
"While emotional unions are not inherently
good for structuring family, marriage is. Families
are the building blocks for a healthy society and
for encouraging permanency and exclusivity in
relationships. These benefits for purposes of
marriage are inherently good."
That came from the brief of the amici that
opposes the relief that we seek here today.
We agree with that statement, "families are
inherently good." Florida's families, irrespective
of their gender, deserve to have the rights and
protection that's recognized by the opponents who
have their own view of marriage, but nevertheless
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recognize how significant it is and how powerful it
is for the individuals involved and for our
society.
In Baskin, which came out last week, the court
stated: "In less than a year, every Federal
District Court to consider the issue has reached
the same conclusion, in thoughtful and thorough
opinions. Laws prohibiting the celebration and
recognition of same-sex marriages are
unconstitutional. It's clear that the fundamental
right to marry shall not be deprived to some
individuals based solely on the person they choose
to love."
And that's really what this case is about,
Your Honor. It's a right of a person to choose who
to love and who to make their future with.
The court in Baskin said: "In time, Americans
will look at the marriage of couples, such as
plaintiffs" -- and he was referring to same-sex
couples -- "and refer to it simply as a marriage;
not a same-sex marriage. These couples, when
gender and sexual orientation are taken away, are
in all respects like the family down the street."
Exactly what I said when I stood up here to
begin with.
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"The Constitution demands that we treat them
as such. Today the injustice that we had not
earlier known and understood ends."
And, of course, the Love case, which was
decided yesterday, which Your Honor spoke of, the
Court said:
"This Court bases its ruling primarily on the
utter lack of logical relation between the
exclusion of same-sex couples for marriages in any
conceivable State interest."
And, of course, that's true, in Florida.
Why is it true? Because under the law, they
can live together; under the law, they can have
children; under the law, they're families.
But they're not families. They're
second-class families.
As this Court has explained, in America, even
sincere and long-held religious views do not trump
the constitutional rights of those who happen to
have been outvoted.
And I know that the -- some of the memos
submitted by the amici talk about vote and the
respect for the vote.
I suggest to Your Honor that what they are
trying to persuade the Court is to accept the
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tyranny of the majority. Votes are fine. But this
country was founded by people, and people are still
coming to this country to escape the tyranny of the
majority.
And that's what this law, which was, indeed,
voted in by the majority of our citizens, imposes
on them. It imposes on them a second-class
citizenship, and that is not tolerable.
THE COURT: In Williams, in Love -- and I am
citing Love a lot because it's a recent decision --
the Court cites Williams versus Illinois, which is
the United States Supreme Court from 1970. And in
it the judge specifically cites that Court:
"Neither the antiquity of the practice nor the
fact of steadfast legislative and judicial
adherence to it through the centuries insulates it
from constitutional attack."
MR. COHEN: Exactly. I wanted to end by
reading you a letter. Everybody's been reading the
cases. I want to read you a letter.
This letter reads as follows:
"We made a commitment to each other in our
love and lives and now have the legal commitment
called "marriage" to match it. Isn't that what
marriage is? I have lived long enough now to see
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big changes. The older generation's fears and
prejudice have given way, and today's young people
realize that if someone loves someone, they have a
right to marry.
"Surrounded as I am now by wonderful children
and grandchildren, not a day goes by that I don't
think of Richard and our love, our right to marry
and how much it meant to me to have that freedom to
marry the person precious to me, even if others
thought he was the wrong kind of person for me to
marry.
"I believe all Americans, no matter their
race, no matter their sex, no matter their sexual
orientation should have that same freedom to marry.
The government has no business imposing some
people's religious beliefs over others.
"I support the freedom to marry for all."
That letter, Your Honor, was written by
Mrs. Loving who was allowed to be married as a
result of the Loving case. This is written on the
40th Anniversary of the Loving decision of the
United States Supreme Court.
And I would hope that after the decision that
Your Honor will enter in this case that the
plaintiffs in this case will have the ability to
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write a letter with the same sentiments as
Mrs. Loving. They have that right. They are equal
citizens and should be equal citizens in the eyes
of the law. Thank you.
THE COURT: Thank you very much.
All right. Thank you very much for being
mindful of the time. We will move on, and I will
hear from all sides who want to argue to me orally
on the amicus briefs.
THE COURT: Good afternoon.
MR. ROSENWALD: Good afternoon, Your Honor.
My name is Robert Rosenwald. I represent
Amici Curiae the City of Miami Beach and the City
of Orlando, and as of today, the Village of Key
Biscayne, which passed by unanimous consent their
joinder in our amicus brief.
I would like to point out first that the State
of Florida has not argued any State interest that
it argues might justify the ban on marriage
equality.
And the failure of the State to articulate any
legitimate State interest should end the inquiry
under any level of constitutional scrutiny.
As the briefs of the City of Miami Beach and
the City of Orlando made clear, however, our cities
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have a strong governmental interest in seeing
Florida's marriage ban overturned.
One overarching idea animates our concerns.
The legitimacy of our government is dependent
upon application of transparent and equitable laws.
Florida's marriage ban is the embodiment of a
law that is neither transparent, nor equitable.
The ban makes gay and lesbian couples lesser, for
no valid reason, than their straight counterparts,
in the City of Miami Beach, whether they are
citizens, tourists or employees.
THE COURT: And in your brief, you spoke on
that, but also the strength of your brief also
relied on the economic impact that would happen
depending on what I decide today.
MR. ROSENWALD: Your Honor, you're absolutely
right. We are -- we have a strong interest in
Your Honor's decision because, as an employer, our
cities have had to work what is called
"work-around" in order to lessen the discriminatory
effect of the marriage law. We have to do things
like pass discrimination laws, we have to pass
domestic partner ordinances.
We have to pass -- we passed an ordinance
called a grossing-up ordinance. That means that
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the city pays a reimbursement to each gay or
lesbian couple who's registered in our domestic
partner registry in order to make up for the extra
federal income tax that they have to pay in order
to purchase health insurance under our city's
plans.
Put quite simply, all couples, besides gay
couples, pay post-tax dollars. Those -- the price
isn't taxed. Gay couples have to --
THE COURT: I'm sorry to interrupt.
You also mentioned tourism revenue.
MR. ROSENWALD: That's true, Your Honor.
The University of Southern California put out
a study just recently, in fact, on the day that we
filed our brief, and determined that wedding
tourism alone in the three years following the
overturning of the marriage ban -- or allowing
same-sex marriage in Florida -- would provide
several million dollars in tourist income, and it
would also create directly up to 2600 jobs in the
State of Florida.
So there is a direct monetary gain. There is
also a direct gain to our tourists and to our
employees, Your Honor.
But it's not just money that we care about.
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When tourists, like Janice Langbehn -- who
many people in Miami know about -- came to Miami to
take a trip, to take a cruise, and ended up going
on that cruise with her family, with her spouse and
her children, had an aneurism and had to come to a
Miami hospital.
And despite having documents showing their
relationship, the hospital refused to recognize
their relationship because they weren't legally
married in Florida.
And they said Florida is an anti-gay State.
When tourists -- and as a result, Janice
Langbein died, separated from her children and her
family, alone, in the hospital bed.
There's a very real cost to this ban.
And when tourists find out that that kind of
thing happens, they don't come back, Your Honor.
We are spending millions of dollars to attract
tourists to come to the State of Florida. At the
same time, we're telling them stay away, we're not
going to respect you, and we're not going to honor
your relationship when you come here.
Your Honor, also, there's an additional
difficulty that Florida cities have to take into
account on the employment front.
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And the difficulty of imposing our work-around
and the grossing-up of income requires complex
algorithms and staff who are trained to treat
people differently.
And I would submit, Your Honor, that our
employees -- simply by the fact that we have to
register them as domestic partners, even in our
best and most sincere effort to make them equal --
we're putting them into a different class of
citizen, a different class of employee.
We're telling them that their relationship is
not as valued and not as important as that of their
straight coworkers. That affects employee morale.
When employee morale suffers, our customer service
to our citizens suffers.
And finally, the legitimacy of our government
suffers.
Thank you, Your Honor.
THE COURT: "Legitimacy of our government,"
can you explain that?
MR. ROSENWALD: Yes, Your Honor.
The legitimacy of our government depends upon
transparent and equitable laws. We are put into
the position of being the enforcer of a
discriminatory regime, when we have to treat our
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citizens differently, when we can't honor their
marriages when they come into our Clerk's office.
We are put into the position of discriminating
against our employees when we have to tell them
that -- absent our expensive and hard-to-implement
work-around -- that their relationships can't be
honored for the purposes of benefits, can't be
honored for the purposes of taking a day off if a
loved one is sick, as far as when an employee dies,
enjoying pension benefits.
So when the government is put into the
position of being the one that discriminates, the
legitimacy of our government suffers.
THE COURT: And you cited Margaret Mead and
her authority and what she wrote regarding the
American family.
MR. ROSENWALD: Yes, Your Honor.
THE COURT: And this was years ago.
MR. ROSENWALD: Yes.
THE COURT: And fast-forward to now, 2014.
MR. ROSENWALD: And today we're put in a
position where our government wants to do right by
all of its citizens, and we're just asking that the
Court allow us to do that.
THE COURT: Right. Thank you.
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MR. ROSENWALD: Thank you, Your Honor.
THE COURT: Okay. Who's next?
Good afternoon.
MR. STAVER: Your Honor, I'm Matt Staver with
Liberty Counsel, and I represent the amici, Florida
Family Action, the Florida Democratic League and
People United to Lead the Struggle for Equality.
And thank you for giving us the opportunity to
present oral argument, and we should be brief.
I want to address several things that we
addressed in our brief, but I also want to address
Windsor and Baker and the standard of review.
But before I get to that, Your Honor, I would
like to address the preliminary issue, which is
that summary judgment at this stage is premature.
Because the case law is pretty clear that at the
summary judgment stage there needs to be no
material disputes of the fact, and that the
plaintiff must conclusively show that there's an
absence of a dispute of material facts.
And yet, what we have here is really no facts
that have been submitted by the plaintiff.
Also, Florida Rule of Civil Procedure 1.150
(c) says that at the time of the filing for the
motion for summary judgment the plaintiffs have to
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present their affidavits or evidence at that point.
So they can't cure it, even at this stage,
even if they were to file it today. And they
didn't do that.
The only affidavit that I know that's been
entered is an affidavit by Shannon Minter, who's
not a party to the case, but that is riddled with
hearsay. It's a newspaper article. There's other
issues.
The only thing that would relevant that was
filed was the actual ballot language in the summary
of the ballot of the 2008 vote.
But outside of that, nothing in that affidavit
passes the Rules of Evidence. So even that
affidavit doesn't provide any evidence for this
Court to rule upon.
We don't even know at this stage -- because
the complaint was not verified -- that these are
individuals who live in Florida, that these are
individuals who have a relationship, that they have
sought to be married, that they've been denied
marriage.
They make allegations about stigma. We don't
know any of that information.
And they're also talking about rational basis.
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And rational basis, whether the State is
putting on any reasons or not, is not relevant
because the State doesn't even need to put on
reasons if the plaintiff hasn't met their burden.
And they haven't met their burden.
But even if the plaintiffs had met their
burden at this stage for summary judgment -- which
they clearly have not -- then rational basis
determines what kind of rational basis would the
State have.
And the only rational basis that has been
submitted is the affidavit that we submitted by
John Stemberger, who was the chairman of the
Marriage Protection Amendment.
THE COURT: I'm sorry to interrupt you.
I mean, it's interesting that you're making
that argument, but I didn't hear that argument from
the State.
MR. STAVER: Well, yeah, I can't speak for the
State, you know. We certainly are making that
argument. We made that in our brief, and that
is -- even if the State doesn't make that argument,
because the Clerk is remaining neutral and the
State is focused on a more preliminary issue, and
that is Baker -- which I agree with the State's
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position on Baker, and I want to address that in a
minute -- and how Windsor does not affect Baker.
So the State's position doesn't even get to
the summary judgment issue as to the standard,
because the State's position is that Baker's
already decided. And I'll get to that in a moment.
In fact, as recently as 2005, as the State's
brief points out, the Wilson versus Ake, the Middle
District of Florida, said that Baker versus Nelson
still controls.
In fact, back in 2005, there were five or so
cases filed in Florida challenging the marriage
laws before the amendment passed. It was
challenged in the 1997 statute. And those
particular cases all dismissed the challenges, and
Wilson versus Ake specifically cited Baker as
controlling.
THE COURT: What about Justice Kennedy's
decision in Windsor?
MR. STAVER: Windsor is -- does not change
Baker. And even though it may have been cited by
the Second Circuit, it wasn't relied upon or
distinguished or indicated in any way that the
Supreme Court is not following it.
In fact, if you read the Windsor decision,
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Windsor was about federalism. It was not about
States. It was not about same-sex marriages. It
was about the rights of States to define marriage.
In fact, on page 2689 and 90, it says, "by
history and tradition, definition and regulation of
marriage" -- as will be discussed in more detail --
has been treated as between -- "has been treated as
being within the authority and realm of the
separate States."
And then on page 2691, Kennedy's majority
decision says: "The definition of marriage is the
foundation of the State's broader authority to
regulate the subject of domestic relations with
respect to the protection of offspring, property
interests, and the enforcement of marital
responsibilities."
And then also, in Windsor, Windsor on the next
page says, "the State's power in defining the
marital relation is of central relevance in this
case quite apart from principles of federalism."
Here, the State's decision, as it refers to
there in New York, New York made a decision to
change the definition of marriage to include
same-sex couples.
So what was at issue in Windsor was not the
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Full Faith and Credit Clause Provision, but the
Federal definition where the dictionary act was
changed in the 1996 Federal Defense of Marriage
Act.
And what this decision stands for is that when
New York created the same-sex marriage and changed
the definition in New York, then the Federal needs
to respect that. And the Federal DOMA was
overriding the State's rights.
And it's over and over again throughout
Windsor that the definition of marriage is the
foundation of the State's broader authority to
regulate the subject of domestic relations.
It continually reemphasizes the State has the
authority to regulate the definition of marriage
and also, obviously, the broader aspects, rights
and benefits of marriage. But certainly even the
definition is mentioned more than once.
And when New York chose to redefine marriage,
the Federal law interfered with that, and Windsor
is a federalism decision.
Baker was not implicated in that because it
was not a same-sex marriage case. Baker simply did
not apply because the issue was not same-sex
marriage, whether it was legal in New York.
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The issue was whether or not having been
legalized in New York, can the Federal government
come in and say, no, we're not going to allow you
to do that; and, therefore, even though you have
decided as a State to have same-sex couples be able
to marry, now you have two different kinds of
marriage.
Because in the State they can marry, but
within the Federal, they're not going to be treated
the same way as the State has already chosen.
So Baker was never implicated in Windsor, and
Windsor is solely about the Federal rights. The --
THE COURT: I'm sorry to interrupt you.
MR. STAVER: Yes.
THE COURT: What about the flood of cases that
have been coming down, pretty much saying the same
thing, regarding of which came as a result of
Windsor, how -- can you address that?
MR. STAVER: Yes. Sure. And before Windsor
came down last year, there are about 50 cases in
the country, and most of those have upheld -- five
of them, including in the State of Florida --
upheld the State's ability by statute or amendment
to have marriage as the union of man and woman,
about 50 of those cases.
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The first one that went the other way was
Massachusetts in 2003; and then that became
effective in 2004; and then, of course, the one out
in California that happened with the Proposition 8.
So those were some of those original cases.
After Windsor came down last year, you've had
this load of cases that have decided that these
marriage laws violate Windsor. I think that, with
all due respect to the courts that have done so,
none of those courts have -- I think they've
misread Windsor.
Windsor is not a same-sex marriage case.
Windsor is a federalism case. And replete
throughout Windsor it is dealing with the State's
rights to define marriage.
What we're not talking about here is Florida
defining marriage as involving same-sex couples and
the Federal government trying to stop us. If
that's the case, Windsor is controlling on all
fours.
What we're dealing with is what Windsor
actually reaffirmed, that the States have a right
to define marriage. And it uses the word "the
definition of marriage" more than once, that the
State had a right to define marriage.
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New York defined it differently than what the
Federal government was allowing them to exercise.
And that, ultimately, implicated the federalism
issues that resulted in this decision of Windsor.
It was not a same-sex marriage case.
And I respectfully submit that those cases are
overreading Windsor. In fact, even in the
concurring -- or in the dissent, Roberts said this
is not a case about same-sex marriage. It was not
a case about same-sex marriage, and it doesn't
control.
What does control is the Baker versus Nelson
case. Now, we may argue -- those that are here --
I don't, but, obviously, there's people here,
advocates that are arguing -- that Baker versus
Nelson doesn't control it anymore because it's
changed, the climate has changed, some of the
precedents have changed. That may be --
THE COURT: Isn't that what happened at the
time of Loving versus Virginia, that the climate
had changed?
MR. STAVER: Yes. But who made that decision?
It was the Supreme Court of the United States; not
lower courts.
Irrespective of what anyone thinks, and with
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all due respect, even this Court or any appellate
court, even any of the courts that have made these
decisions -- and not all of them, by the way, have
addressed Baker because Baker hasn't been raised or
at least argued in all of these cases, so they
didn't all just reject Baker.
But the only court that can say that Baker
doesn't apply, that times have changed, the
precedents have changed, the country has changed,
is the court itself that issued that binding
precedent.
And people may disagree with Baker. They may
have arguments against Baker, but that's not
relevant to whether Baker still applies. Baker
still applies. In Baker versus Nelson, as the
Wilson versus Ake case said, in the Middle District
of Florida, in 2005, is controlling precedent.
And there's a number of other courts that have
also said, when they've addressed Baker -- because
Baker hasn't been argued in all the cases, in the
50 cases that I know of, and we were involved in
many of those between 2004 and 2008 or 9. Many of
those didn't even raise the issue of Baker. People
didn't even think about Baker.
But Baker is a binding precedent. It was a
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decision on the merits. It was a unanimous
decision. And the Supreme Court has indicated that
when you have a decision by the Supreme Court
saying that there's no jurisdiction for want of a
Federal issue, that is a decision on the merits and
it is binding precedent until it is overturned.
Baker has not been overturned, and Baker has
not been even implicated as no longer valid in the
Windsor case.
The only time the Supreme Court would likely
address Baker is if, in fact, they had a case
involving a State same-sex marriage issue, whether
or not a State, a marriage law is constitutional,
at that point in time, no question, I'm sure that
they will address Baker.
But until that time, Baker still applies. And
Baker says -- and this is what the State's argument
is -- that it is controlling on this Court. So why
the State didn't address the issue of a summary
judgment is because we don't even get to that
point, because there's a single precedent out
there.
And that precedent was individuals who sought
to be married and ultimately took that case to the
United States Supreme Court. And the Supreme Court
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unanimously said there's no jurisdiction here
because there is no constitutional relief that is
available for you.
That decision has been binding, and that
decision should control all these other court cases
as well, but it certainly controls in this case.
Also -- but moving back just a few moments,
with the issue of summary judgment, we don't have a
verified complaint. We don't have affidavits. We
don't know the very basic issues in this case to
decide something that is so critically important to
all of Floridians, indeed, all the people in this
country, but, certainly, in Florida.
THE COURT: So are you questioning the
plaintiffs actually have standing to bring this
today?
MR. STAVER: I don't know if they have
standing, because there's no facts that have been
verified that they have standing. So I question
everything about whether they're even Florida
residents. There's no -- there's no verification
in that.
And they make the allegation -- and I'll give
them, you know, we're at summary judgment. Summary
judgment. We've not had any interrogatories.
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We've had no request for production. We've had no
stipulated facts. There's not a single piece of
evidence that has been verified that this Court can
accept.
And even the arguments by counsel for the
cities that just made the arguments regarding
economic impact and tourism, that's all not
verified. That's never been subject to
cross-examination. That can't be taken into
consideration.
There's no judicial notice that's been
presented that this Court can actually look at an
economic impact. Who knows whether there's an
economic impact without subjecting that to
significant cross-examination and bringing in
experts to deal with that.
And on the issue of the rational basis, the
plaintiffs make arguments that, well, there are --
there's no difference in the fact that children are
raised in same-sex households versus opposite-sex
households. Well, that may be their opinion, but
that's also contradicted by significant
peer-reviewed studies.
The Mark Regnerus study, that is a
peer-reviewed study done in 2012 -- which, by the
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way, was after, two years after the XXG case
regarding adoption, which I also want to mention
something about that as well. But that study was a
peer-reviewed study. It wasn't somebody's just
opinion.
And in that study, as we cited in our brief,
there were significant differences between children
who are raised in same-sex households versus those
who are raised in opposite-sex households.
And that study bears that out. That came two
years after the XXG case. We presented that to the
Court as part of our filings. That's not rebutted.
That is a peer-reviewed study.
And there's other studies that we put in
there, too, about the best interest of children,
which goes back to John Stemberger's affidavit,
which is before the Court.
And John Stemberger says that there was no
animus -- as the chairman of the Florida Marriage
Protection Amendment -- said there was no animus
behind passing or proposing the Florida Marriage
Protection Amendment; that it was about
strengthening marriages and providing the optimal
environment in which children can be raised.
Because same-sex marriage, as a policy matter,
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as a policy matter, says that moms and dads are
fungible, they're not necessary, that gender really
doesn't matter to the well-being of children.
Yet there's studies, study after study -- and
Regnerus is one of most recent peer-reviewed
study -- that affirms that there is a difference, a
significant difference, on the impact of the
well-being -- economically, and all kinds of social
ways, and other ways as well -- with children who
are raised in households with an opposite-sex mom
and dad versus children that are raised in
households with same-sex parents or parentee, two
moms and two --
THE COURT: Does that study include single
parents?
MR. STAVER: I think that study does
include -- because, I think, in the study, also has
some children who are raised by lesbians or gays
that are not necessarily in a relationship. So it
does do that.
And by the way, there's more than just the
Regnerus study. There's other studies out there
that look at children that are raised in
single-parenting homes, children that are raised in
opposite-sex homes, and children that are raised in
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same-sex homes.
And then, also, those studies have also
backed up -- those were before Regnerus. They
backup that particular peer-reviewed study of the
2012 that children that are raised in an
opposite-sex home fare better in all the different
categories.
Children that are raised in a same-sex
household do not fare as well, and children that
are raised in single parent have differences as
well. But the optimal environment is the
opposite-sex, mom and dad.
And what John Stemberger said in his
affidavit, as the chairman, there was no issue of
animus or hatred. There was an issue of trying to
strengthen marriage and provide the optimal
environment in which children can be raised so that
they would have the opportunity to be raised with
mom and dad.
Gender does matter. I mean, there's
differences that gender brings to that environment
that are beneficial to those boys and girls as
they're growing up. And those studies show that.
And since we're here at the issue of the
status or standard of review, which we believe that
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it is rational basis, all of those things count.
Those are significant issues that we can't just
jump over and assume, based upon non-verified
assertions by the plaintiff, that those things are
not true.
THE COURT: What about heightened scrutiny?
MR. STAVER: Yes, I think in this case what
applies is rational basis, not heightened scrutiny
or strict scrutiny, for several reasons.
In the DMT case that was decided last year,
DMT said that sexual orientation is not entitled to
the heightened scrutiny.
In fact, DMT -- it was pointed out that DMT
cited favorably the XXG adoption case. Well, DMT
cited that case, but it wasn't favorably, that it
was just endorsing the case.
First cited it on page 342. And for that
proposition, it cites that in the adoption case
rational basis applied, which is what the Court
ultimately adopted as a rational basis.
And then later it cited it, on pages 343 and
344, and it cites it for the proposition that, in
the XXG case the parties in the case agree, quote,
that "gay people and heterosexuals make equally
good parents."
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And it says, "no party offered justification
for the prohibition on homosexual adoption," and so
forth.
And it says, "likewise, in this case" -- the
DMT case -- "likewise" -- the Court goes on to say
in that case -- "no party and no amicus curiae has
advanced the argument that either TMH or, for that
matter, DMT is unfit to be a parent."
So it cited it only for the proposition that
there was no contrary evidence. In the XXG, the
parties agreed with regard to parenting.
In the DMT case, nobody raised the issue of
unfitness.
And I also want to point out something that
was mentioned by the plaintiffs, where they say
that there was a fundamental right that was found
in DMT or something to that effect.
But DMT dealt -- or that it didn't involve a
fundamental right. DMT did involve a fundamental
right, to parenting, to a biological parent's right
to be a parent. And that was the issue in DMT.
You had someone who was a donor and another
birth mother, and there is a lot of discussion
about a fundamental right for that person whose
biological relationship to that child to be a
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parent. And the law did not allow it and,
therefore, the law was struck down. There's is --
so it did involve a fundamental right.
And even involving a fundamental right, that
was clearly articulated in Troxel and other Supreme
Court cases, even involving a fundamental right,
that's clearly been argued or accepted as a
fundamental right, the court still applied rational
basis. So even with that fundamental right still
applied rational basis.
Here, the DMT case settled the issue of what
standard of review. Because the DMT case says,
regarding sexual orientation, it's rational basis.
There is no fundamental right.
And there's no Supreme Court case that grants
this as a fundamental right that raises the level
to strict scrutiny. And most of the other cases --
some of them have gone both ways, but there's no
precedent that would say -- in the United States
Supreme Court or in this State -- that sexual
orientation is a fundamental right or that same sex
marriage is a fundamental right. And absent a
fundamental right, the standard of review is strict
scrutiny.
And the reason why it's not a fundamental
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right is because it has -- a fundamental right
either has to be articulated, enumerated in the
Constitution, such as one of the amendments or
something of that nature, or it has to be deeply
rooted in our history and tradition, such that
removing that or not protecting it would undo the
ordered concept of liberty.
While sexual orientation, same-sex marriage,
neither one would be deeply rooted in history or
tradition. The first time in the world --
THE COURT: Isn't that the same argument, as
far as interracial marriage, in Loving versus
Virginia?
MR. STAVER: No. We have a constitutional
amendment that granted the fundamental right to
race. And that gave an articulated basis in the
Constitution.
Loving was not a case about the definition of
marriage. Loving was a case in which race was
injected into marriage, contrary to our own
constitutional amendment that protected race.
I gave it the status of a fundamental right
that allowed strict scrutiny whenever race is
ultimately implicated by the government. And race
was clearly implicated in that case.
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Before and after Loving, marriage was still
the union of a man and a woman. Loving was a race
case, and there was a fundamental right involved
because of the constitutional enumeration of that
right.
The issue that we have here is there's no
constitutional enumeration of sexual orientation or
same-sex marriage, and it's not deeply rooted in
history. The first time that same-sex marriage in
the entire world's history -- not even in the
period of the Greek era where there was more
same-sex kind of activity did they recognize
same-sex marriage.
The first time in the world that it ever
happened was in 2000 in the Netherlands, in the
Norweigian countries there.
And the first time it ever happened in the
United States is 2004 in Massachusetts. The
decision in 2003, but the effectiveness of it was
in 2004.
So we've had less than 14 years in the entire
world and less than 10 years in the United States
of America. There's no way that that could be
deeply rooted in history and tradition.
So, consequently, the standard of review has
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to be what DMT already said is rational basis.
And rational basis, then the burden is on the
plaintiffs to present evidence that would be
verifiable and also admissible under the Rules of
Evidence, which they haven't done, and then to
negate all of the possible rational basis that the
State has.
And the State doesn't even have to present a
rational basis. It's the burden of the plaintiff
to get to that point to put the burden and shift it
over to the State. They've never reached that
point of shifting the burden to the State, so the
State doesn't have to present anything.
But clearly, the State can present, and we've
presented either rational bases at the time of the
adoption or rational bases later can also be
articulated as well, and we've outlined a number of
those rational bases within our brief that we
submitted before this Court.
One of those, of course, is in the affidavit
of John Stemberger, and also in the other studies
that we presented, including the most recent
Regnerus study; and other reasons as well,
procreation and the stability of marriage.
One of the things that Stanley Kurtz said in
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his article that's cited in our brief, looking at
the Scandinavian experiment in same-sex marriage is
that --
THE COURT: Not all heterosexual couples that
marry intend to procreate.
MR. STAVER: That's true. But what we've had
is a history of even being able to annul marriage
if someone was not able to procreate.
And there's Supreme Court cases that have
never been overturned with regards to procreation
being one of the essences of the issues within
marriage.
THE COURT: Well, once a couple -- I'm sorry
to interrupt you. Once a couple who is past the
prime to procreate, what about those people?
MR. STAVER: Well, certainly, they can get
married. But as a policy matter, across the board,
marriage has historically been something that
predates governments and religion. It's not
something that was created by religion or
governments. It predates and it transcends time
and geographies. And for good reason.
Because of the complimentary nature of the
opposite sexes. And from that complimentary nature
of the opposite sexes, the future generation is
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procreated. And within that environment of mom and
dad, male and female relationships, provides the
best environment for raising the children.
Now, obviously, not everyone is going to have
children that come up and become great citizens,
but that doesn't mean that they can't get married,
that doesn't change the policy position.
It doesn't mean that everyone's going to
procreate. They may choose not to or they may not
be able to. That doesn't change the policy
reasons.
Marriage is not just a private emotional
experience that the government puts a seal of
approval on. It's also a public good. Without
opposite-sex marriage, there is no procreation.
Without opposite sexes, there is no procreation at
all.
THE COURT: But isn't that what -- the
plaintiffs agree with you, that it is a good thing
to get married.
MR. STAVER: Well, I think it is a good thing
to get married, because of the underlying reasons
of marriage. Some of those underlying reasons are
channeling procreation and providing the best
environment for children. Plaintiffs --
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THE COURT: And plaintiffs agree with you on
that.
MR. STAVER: They do agree on that. But
plaintiffs' argument would provide no stopping
point. Because if two people can get married, the
same exact arguments can be applied to multiple
varieties of people, polygamy, polyamory. There is
no logical line.
When you say that gender no longer matters
within the marital relationship, it's two women or
two men, or it could be a combination of man and
woman and then another woman. There's no logical
stopping point.
In fact, those arguments are being made right
now in the country that polygamy and polyamory
should ultimately be allowed as well, because the
arguments are exactly the same.
And what Stanley Kurtz said in his article is
that when marriage was already bumpy and on the
rocks, so to speak, in the Scandinavian countries,
same-sex marriage -- which basically removed any
kind of gender from marriage or uniqueness to the
marriage relationship in that respect -- further
deteriorated marriage in the Scandinavian
countries.
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And so they've been in that experiment for now
14 years. And within those relationships and
within that experimentation, it has actually began
to deteriorate the very essence of marriage. And
when you deteriorate the essence of marriage, you
do have economic impact.
When you have children that are raised in -- I
mean, the most -- the quickest way to make a family
poor is divorce and to have children raised in that
arena. I was raised by a single mom, and I know
that the impact that that has.
THE COURT: So are you saying that if gay
marriage is allowed, it would end up in divorce?
MR. STAVER: No, I'm not saying that.
I'm saying that when you say that marriage can
be anything you want it to be, and the government's
going to put all of the rights and benefits and
elevate that to a preferred level, marriage really
becomes nothing. And that's what happened in the
Scandinavian countries. It ultimately weakened
marriage.
And at a time when marriage ought to be
strengthened, same-sex marriage, I think, will
weaken marriage. It has already in the
Scandinavian countries and we're only 10 years --
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14 years into that experiment there.
This is a huge cultural shift that we're on
the precipice of deciding in this country. It's
huge. It has huge implications. There's children
at issue. There's the issue of marriage itself
that's at issue. It's our whole society at issue.
And these things must not be taken lightly.
And certainly, at this stage, can't just be
presented by arguments or opinions that are not
verified and put to the scrutiny that a normal
summary judgment decision and trial should
ultimately have. We can't cross that precipice
that easily.
So the -- there's a couple of other things.
Let me just -- and I'll sit down here.
THE COURT: All right. Thank you.
MR. STAVER: There's -- I think I did cover
most everything here. Oh, one other thing.
In the case involving -- there was a question
about the democratic process, and that it was
tyrannous. Well, that's not what the Supreme Court
said regarding the democratic process in the
Schuette case.
It said -- that was a case in which the people
voted regarding not wanting to go -- not wanting to
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accept affirmative action. And even though that
involved race, the Supreme Court upheld it.
It said: "Were the Court to rule that the
question addressed by Michigan voters is too
sensitive or complex to be within the grasp of the
electorate, or that the policies at issue remain
too delicate to be resolved, saved by university
officials or faculties acting at some removed-from
immediate public scrutiny control, or that these
matters are so arcane that the electorates' power
must be limited because the people cannot prudently
exercise that power even after a full debate, that
holding would be an unprecedented restriction on
the exercise of a fundamental right held not by
just one person but by all in common. It is the
right to speak and debate and learn, and then, as a
matter of political will, to act through a lawful
electoral process."
That was the decision written by Kennedy.
And that decision was a strong reaffirmation
of the peoples' right to engage in a referendum.
That's what we have here, is the people in 2008
engaged in their lawful right -- which is one of
the most basic rights of a democratic society, to
be able to go to the polls and to vote.
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And that vote does not contravene any
constitutional fundamental right. It was not
motivated by animus. There's absolutely no
evidence of that. And that vote is a lawful vote
that must be respected and cannot just simply
lightly be ignored.
And just, finally, again, in Windsor, I think
Windsor, combined with Schuette, affirms the
State's authority to ultimately define marriage.
Schuette said they have the fundamental right, this
highest right to be able to engage in this
democratic process and the Supreme Court's not
going to second-guess it.
And in Windsor, the Court said that what was
at issue here was the State's right to define the
marriage, and the Federal government can't
interfere, but the State certainly has the right to
do it.
The State of Florida and the people of Florida
didn't create marriage between a man and a woman,
as the plaintiffs argue that it just came into the
statute in 1977, in 1997 and 2008. Marriage, as a
man and a woman, has always been -- in the case law
and the statutes -- understood as and specifically
referred to as between a man and a woman.
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So the 77th statute, the 97th statute, and the
2008 amendment did not create anything new. It
just reaffirmed, not only Florida's definition and
understanding of marriage, but millennia of
generations understanding an operation of marriage
as the union of a man and woman.
THE COURT: All right. Thank you.
MR. STAVER: Thank you.
THE COURT: Anyone -- I'm sorry, I don't want
to ignore anybody here, from this side, does
anybody else here have anything? No? All right.
MR. ALFANO: Your Honor, I'm Alexander Alfano.
I'm here on behalf of the Christian Family
Coalition. I did not file an amicus brief, but I
did motion the Court just this Monday, and I wish
to address the Court.
THE COURT: I will give you five minutes.
MR. ALFANO: Thank you, Judge.
MR. COHEN: Your Honor, when this gentleman is
finished, would you give me one minute?
THE COURT: I will. I will. I'll give you
five minutes.
MR. COHEN: Thank you, Judge.
MR. ALFANO: Your Honor, Alexander Alfano, on
behalf of the Christian Family Coalition, nonprofit
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organization.
Judge, we've seen here that we have a neutral
ministerial officer as a defendant. He cannot and
has not properly defended the interests of all the
parties that are implicated in this decision in
this case.
The State intervened just a week ago. I think
it was last Tuesday that Your Honor granted the
Attorney General to intervene in this matter.
And due process, Judge, would require that the
parties be allowed to properly conduct discovery,
fully brief the issues. The State --
THE COURT: With all due respect, this case
was filed in January.
MR. ALFANO: That's correct, Judge.
THE COURT: And this hearing has been set for
awhile.
MR. ALFANO: I can't speak as to why the
Attorney General only chose to intervene just last
week, Judge. But the fact of the matter is that
they've been in this case for, approximately, six,
maybe seven days now and --
THE COURT: I thought it was their choice.
MR. ALFANO: That's correct, Your Honor, that
is exactly right.
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But, Judge, let me highlight the issues of the
fact for today that should preclude summary
judgment.
Number one: The economic impact to the City
of Miami Beach or Key Biscayne. What is the
impact? Do we know? Have we conducted any
discovery?
The tourism revenue, pension benefits, the
discrimination against employees, Your Honor, the
stigma to adoptive children, or even how would
ruling in the plaintiffs favor disenfranchise
Florida voters?
Judge, the essence of marriage, would it be
deteriorated? Would it not? These are all issues
of fact that should preclude summary judgment. We
need to conduct discovery.
This -- sure, the case was filed in January,
but we're only in June, Judge, or rather, July.
It's been five or six months that we've really had
to develop the issues in this case. And again, the
Attorney General's only been involved for a week.
We argue that there's just too many issues of
fact to allow the Court to enter summary judgment.
I want to highlight that for the Court here this
afternoon. Thank you.
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THE COURT: All right. Thank you. Mr. Cohen?
MR. COHEN: Your Honor, I would suggest to the
Court that an amicus who was given the privilege of
appearing, and a privilege that we support as well,
can't change the facts of the case as between the
parties.
The amicus merely appears as a friend of the
Court to offer some arguments that they deem
appropriate.
But as to whether or not this case fits
summary judgment, that is between the State and the
Clerk and the Plaintiffs.
The State has not asserted any factual
dispute. The Clerk has not disputed any facts.
And perhaps, Your Honor, that's because on May 13,
perhaps unknown to these gentlemen, there were 13
affidavits filed with this Court all supporting
claims of the plaintiffs. So those facts are
before you, and they are undisputed.
We heard arguments about Baker. I said
before, Baker has been argued in the Windsor case.
The trial court found that doctoral developments
had superseded Baker. That's a trial court in
Kitchen, the Tenth District Court of Appeal.
That's Circuit Court of Appeal. Excuse me.
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And the trial court found that doctrinal
developments had superseded Baker, and the Tenth
Circuit agreed. Baker is no longer.
The studies that were quoted to you are not
before the Court because they're not raised by any
of the parties.
But I think it's worth noting that in the
Deborah case that was decided by the Eastern
District of Michigan in March found that the
testimony which they've cited is entirely
unbelievable and not worthy of serious
consideration.
Moreover, we have Judge Lederman's decision,
which was made after a full trial on the merits of
this particular issue, and she found also that
those arguments did not merit serious
consideration, and that was approved by the Third
District Court of Appeal and, ultimately, by the
Florida Supreme Court.
So the, quote, studies that the opposing party
has chosen not to rely on are not worthy of
acceptance in Florida. The law in Florida is that
those studies are wrong.
We ask that you grant the relief that we seek.
THE COURT: All right. Thank you.
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MR. COHEN: Thank you.
THE COURT: Thank you, everyone. Thank you.
And I will take it under advisement, and have
a good afternoon.
THE BAILIFF: All rise, please.
(Thereupon, the proceedings were concluded at
5:44 p.m.)
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REPORTER'S CERTIFICATE
STATE OF FLORIDA ) COUNTY OF MIAMI-DADE )
I, Glenda M. Powers, Registered Professional
Reporter, Certified Realtime Reporter, and Notary Public
in and for the State of Florida at large, certify that I
was authorized to and did report said proceedings in
stenotype; and that the foregoing pages, numbered from
1 to 82, inclusive, are a true and correct transcription
of my shorthand notes of said proceedings.
I further certify that said proceedings were taken
at the time and place hereinabove set forth and that
taking of said proceedings was commenced and completed
as hereinabove set out.
I further certify that I am not a relative or
employee of any attorney or counsel of party connected
with this action, nor am I financially interested in the
action.
The foregoing certification of this transcript does
not apply to any reproduction of the same by any means
unless under the direct control and/or direction of the
certifying reporter.
Dated this 14th day of July, 2014.
Glenda M. Powers, RPR, CRR, FPR