The Bradenton women want other states to treat their Massachusetts marriage as legal. The suit may make Florida a battleground.
By GRAHAM BRINK
Published July 21, 2004
TAMPA - In a potentially groundbreaking lawsuit, a lesbian couple has moved to force every state and the federal government to legally recognize their Massachusetts marriage.
Holding hands, the Rev. Nancy Wilson and Paula Schoenwether stood outside the courthouse to tell reporters that the time had come for homosexuals to receive full and equal rights, including the right to have their marriage recognized throughout the country.
The lawsuit says the exclusion of lesbian and gay couples from marriage violates the Constitution, including the right to equal protection under the law and the implicit right to privacy.
"No one has anything to be afraid of by recognizing our marriage," Wilson said outside the courthouse Tuesday. "We know this is a moment in history, this is a time in which gay and lesbian people are not going to accept second-class citizenship in our country."
Seven years ago, the Florida Legislature defined marriage as a bond between one man and one woman. Florida, like many states, refuses to honor same-sex marriages performed outside its borders.
Congress has passed similar laws, including one that says no state shall be required to recognize same-sex marriages performed in other states.
The suit cites the full faith and credit clause in the U.S. Constitution, which instructs states to honor other states "public acts," often referred to as reciprocity. The clause was written to help the original colonies cope with their differing laws.
For instance, states legally recognize heterosexual marriages performed in other states, even if the minimum age requirements in each state differ.
"If Massachusetts recognizes same-gender marriages with all the legal rights, privileges and immunities of different-sex marriages, Florida should be obliged to recognize the full scope of legal rights bestowed upon them under Massachusetts law," the suit states.
However, federal courts have been reluctant in some circumstances to enforce one state's laws when they conflict with those of another state.
The suit names as defendants Hillsborough Clerk of Court Richard Ake and Attorney General John Ashcroft. Ake's office declined to file the couple's Massachusetts' marriage license.
Wilson and Schoenwether's attorney, Ellis Rubin, says he believes this is the first suit in the nation to attempt to force the federal government and other states to recognize a marriage that occurred in a state where same-sex unions are legal.
"This makes Florida the legal battleground for a very important issue," Rubin said.
Wilson and Schoenwether, who live in Bradenton, have been together for 27 years. Wilson is a senior pastor at Metropolitan Community Church. Schoenwether has a doctorate in clinical psychology, though she no longer practices.
They married July 2 in Provincetown, Mass.
They want the same rights and benefits that couples in heterosexual marriages enjoy. They do not have the same access to Social Security, family and medical leave, health and pension survivor benefits and some tax benefits.
The issue, though, goes beyond the tangible benefits, Schoenwether said.
"It's also about being treated like full human beings," she said.
David Caton, head of Florida Family Association, said the legal argument jeopardizes other requirements for marriage and opens the door for other groups of people to try to marry.
Pretty soon, Caton said, pedophiles will petition to marry youngsters; consenting adults will try to marry three or four other adults; brothers and sisters will want a union.
Caton thought the plaintiffs and their lawyer were using a shotgun approach, hoping one of their arguments might stick.
"I don't see where John Ashcroft or the federal government has the position to say what marriages Florida should recognize," he said.
The lawsuit comes a week after the U.S. Senate thwarted a proposed constitutional amendment to ban gay marriage. President George W. Bush supported the proposed amendment. He had said same-sex marriages would undermine the sanctity of the institution.
Rubin, the plaintiffs' lawyer, has recently represented several gays and lesbians who have attempted to get married in Florida. Nearly 30 years ago, Rubin opposed homosexual rights. Now, he says he has "seen the light" and is doing his "penance" by representing the couples for free.
"These issues have a lot to do with prejudice and ignorance," he said. "If I can change, anyone can change."
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- Times staff writer Sandra Amrhein contributed to this report. Graham Brink can be reached at 813 226-3365 or brink@sptimes.com
