Broward Circuit Judge Dale Cohen on Monday declared Florida’s gay-marriage ban unconstitutional, the third South Florida judge in 18 days to do so. He immediately stayed his decision pending an appeal by the state of Florida.
His ruling paves the way for Heather Brassner to dissolve her 2002 Vermont civil union and grant a divorce from her estranged partner.
Brassner’s lawyer, Nancy Brodzki, predicted that the judge would rule in her client’s favor. “I think Judge Cohen is going to read his opinion in open court and I think Judge Cohen is going to declare the ban unconstitutional,” she said.
Brassner and her first partner, Megan Lade, were united in a civil union on July 6, 2002, in Vermont. That was two years before the first gay and lesbian couples in the United States were allowed to marry in Massachusetts, and seven years before gay marriage became legal in Vermont.
Four years ago, according to Brassner, Lade cheated on her and soon after disappeared. Brassner now has a new partner and would like to someday marry her, but Florida law forbids recognizing the Vermont civil union and therefore won’t permit a divorce. And Vermont won’t dissolve the union, either, without a signed affidavit from Lade.
“We’ve been separated for four years,” said Brassner, 41. “I call it ‘the invisible string.’ It’s hard because you’ve moved on but there is that fear there, that they may come back and try to get you. I live in fear that she might go after me for money. In other states, she could use my name to buy property. I’ve been checking my credit reports. In a state where they recognize it, she has spousal rights that I don’t.”
Last September, Brodzki petitioned to get Brassner a divorce. The case randomly was assigned to Cohen, who told the attorney that before he could dissolve the civil union, he must “rule on the constitutionality” of Florida’s gay marriage ban.
“I didn’t know in advance how he would feel about it,” Brodzki said. “Was he going to duck it?”
Last spring, Cohen instructed Brodzki to file a motion for declaratory judgment, so he could make a ruling in the case.
Brodzki began researching cases throughout the United States in which judges tossed gay marriage bans as unconstitutional.
The gay-marriage battle is being waged across the nation. According to the advocacy group Freedom to Marry, LGBT advocates have won more than 25 times in federal, state and appellate courts since June 2013, when the U.S. Supreme Court ruled in favor of Edith Windsor, a lesbian widow, and threw out a key portion of the 1996 Defense of Marriage Act.
In July, a federal judge ruled Colorado’s same-sex marriage ban unconstitutional. Then, a federal appeals court upheld a lower court’s ruling that Virginia’s ban on gay marriage is unconstitutional, a decision that could topple similar prohibitions in the Carolinas and West Virginia. Immediately after, North Carolina’s attorney general announced his office would no longer fight lawsuits seeking to overturn the state's ban, according to Freedom to Marry.
In 2008, about 62 percent of Florida voters supported a constitutional amendment banning gay marriage and civil unions in the Sunshine State: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”
Florida Attorney General Pam Bondi is continuing to fight two right-to-marry victories in July by same-sex couples in Monroe and Miami-Dade counties.
On July 17, Monroe Chief Circuit Judge Luis Garcia ruled Florida’s gay-marriage ban unconstitutional and that Aaron Huntsman and William Lee Jones of Key West could marry.
Eight days later, Miami-Dade Circuit Judge Sarah Zabel ruled that six same-sex couples in South Florida also had the right to marry. Those decisions are valid only in the judges’ respective counties, and both rulings have been put on hold pending appeals by Bondi.
Last week, lawyers in Monroe and Miami-Dade counties asked that their cases be consolidated and appealed directly to the Florida Supreme Court. A spokeswoman for Bondi said the attorney general’s office had yet to respond.