Last edited: January 23, 2005

U.S. Court Rejects Gay Marriage Ban Challenge, January 21, 2005

By Ann Rostow, Network A federal judge in Florida’s central district has dismissed the first major challenge to the 1996 Defence of Marriage Act (DOMA). In an 18-page decision, Judge James S Moody ruled that two women with a Massachusetts marriage did not have the right to be recognised as legal spouses under Florida law.

The women were represented by controversial criminal defence lawyer Ellis Ruben, an elderly attorney with no experience in civil rights law.

In his arguments, Rubin drew Judge Moody’s attention to what he called “the dynamic dozen,” a series of 12 court precedents that Rubin argued should undermine the federal DOMA and its Florida counterpart.

Judge Moody was not convinced, making short work of the plaintiffs’ constitutional claims.

The Full Faith and Credit Clause of the Constitution, which requires states to honour the judgments of sister states, does not oblige a state to act contrary to its public policy, Moody wrote. As for the Due Process Clause, and the Supreme Court precedent of Lawrence v. Texas, which found a due process right of privacy for same-sex couples, Moody had only to look to the US Court of Appeals for the 11th Circuit, the federal appellate court that covers Florida.

Last year, the 11th Circuit brushed off Lawrence in upholding Florida’s ban on gay adoptive parents, and just last week the high court let that ruling stand by declining review. Moody also saw no violation of Equal Protection in Florida’s policies, nor in the federal law, which he observed applied equally to men and women.

As for the rationale of the US government, Moody accepted the standard explanations used to justify marriage discrimination, namely the state’s interest in promoting a two-parent heterosexual home for children.

The facts that same-sex couples have children, and that heterosexual couples without plans for children are free to marry are irrelevant, according to the ruling. To win dismissal, the government needs only to produce a vaguely plausible excuse for its laws, provided they do not infringe on fundamental constitutional rights.

According to the Associated Press, attorney Rubin pledged to fight on to the Supreme Court, despite its refusal last week to hear a challenge to Florida’s anti-gay adoption ban.

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