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Published: Thursday, 7/17/2014

Florida judge overturns state’s ban on gay marriage

ASSOCIATED PRESS

MIAMI — A judge in the Florida Keys overturned the state's constitutional ban on same-sex marriage on Thursday after a legal challenge by gay couples said it effectively made them second-class citizens.

The ruling by Circuit Judge Luis M. Garcia applies only to Monroe County, which primarily consists of the Keys, and will certainly be appealed. The lawsuit contended that the same-sex marriage ban approved overwhelmingly by voters in 2008 violated the federal 14th Amendment's guarantee of equal protection under the law.

The judge, who was appointed by then-Governor Jeb Bush in 2000 and re-elected in 2002 and 2008, said licenses could not be issued until Tuesday at the earliest.The lead attorney for the plaintiffs in the case is Bernadette Restivo, a former chairman of the Lucas County Republican Party.

Ms. Restivo’s firm, Restivo, Reilly & Vigil-Farinas, represented Aaron Huntsman and William Lee Jones, a same-sex couple living in Key West, Fla.

She said one of the clients was a friend of an attorney in her firm, and they started meeting with the plaintiffs in February and filed the case April 1. Ms. Restivo, a 1999 University of Toledo law school graduate, handled the arguments in court and wrote the briefs, she said.

Ms. Restivo, 54, has lived in the Key Largo area full-time since 2005 when her then-husband Tom Noe came under investigation for federal campaign finance law violations and theft from a rare-coins fund he managed for the state of Ohio. They were divorced in 2009.

Ms. Restivo, who was Lucas County GOP chairman 2002 to 2005, said she recently re-registered as a Democrat in order to vote for a friend in the Florida primary election, but said she is “done with partisan politics.”

Ms. Restivo does not share mainstream Republican opposition to homosexual marriage.

“It’s an absolute fundamental right constitutionally for all individuals to be able to marry the person of their choice,” Ms. Restivo said.

Florida Attorney General Pam Bondi and ban supporters argued that the referendum vote should be respected and that Florida has sole authority to define marriage in the state. The Florida amendment defined marriage solely as a union between one man and one woman. A message left by The Associated Press with Bondi's office was not immediately returned.

"The court is aware that the majority of voters oppose same-sex marriage, but it is our country's proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless,even at the cost of offending the majority," Garcia wrote in his decision. "Whether it is ... when Nazi supremacists won the right to march in Skokie, Illinois, a predominantly Jewish neighborhood; or when a black woman wanted to marry a white man in Virginia; or when black children wanted to go to an all-white school, the Constitution guarantees and protects ALL of its citizens from government interference with those rights."

"It hit us a little bit by surprise," Restivo said. "But it's very well written ... a thorough analysis of the argument, so we couldn't be happier." She said her clients would celebrate Thursday night on Key West's famous Duval Street.

"This disrespects just under 5 million voters and effectively disenfranchises them. It shows no regard for the rule of law or the constitution," said John Stemberger, president of the Florida Family Policy Council, which led the effort to put the gay marriage ban on the 2008 ballot.

He said if opponents of the ban want it repealed, they should put the issue back before Florida voters, who passed the ban with nearly 62 percent support. It would take at least 60 percent support to repeal it.

"They do not have a consensus of Floridians so they're trying to go to the courts for a quick fix. If they're going to do it, that would be the appropriate way to do — take it to the people again with another amendment. They deliberately passed on that strategy because they know that Floridians by and large support marriage between a man and a woman," Stemberger said.

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S.

Supreme Court struck down the federal Defense of Marriage Act last year, although those rulings remain in various stages of appeal. Many legal experts say the U.S. Supreme Court may ultimately have to decide the question for all states

Politics writer Tom Troy contributed to this report.



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