An early test for same-sex ‘marriage’

One activist lawyer in Florida is pushing ahead on his own to force states to recognize same-sex “marriages” in Massachusetts and elsewhere by challenging federal law, contrary to the wishes of the nation’s largest groups supporting homosexual rights.

Florida lawyer Ellis Rubin yesterday filed the first federal lawsuit on behalf of a lesbian couple who want Florida to recognize their Canadian “marriage.”

In a separate lawsuit, Mr. Rubin also is seeking to force Florida to recognize a same-sex “marriage” issued in Massachusetts, by challenging both Florida state marriage law and the federal Defense of Marriage Act (DOMA), which stipulatesstates don’t have to recognize one another’s same-sex unions.

This Massachusetts-related lawsuit is also the first of its kind, he notes.

“The gay-rights groups are afraid to go into federal court,” said Mr. Rubin, who has been practicing law for more than 50 years. “I don’t need permission from anybody.”

The key groups fighting for same-sex “marriage” across the country have pursued a different strategy, challenging state marriage laws or state constitutions, but choosing thus far not to challenge DOMA.

“We don’t feel it’s the timely thing to do. The country’s not there,” said Paul Kates, director of public education for the American Civil Liberties Union’s Lesbian and Gay Rights Project. He said his group’s focus is more on state-level litigation because there is a better chance of winning there, and “once more states agree with Massachusetts, we think it’s more likely that we’ll win in federal courts.”

He added that the U.S. Supreme Court seems closely divided on the issue and the election in November could change the court’s makeup, so it’s unwise to move ahead now.

Lambda Legal, a group that fights for homosexual rights, also has lawsuits pending in several states, but all challenge state constitutions, and none are federal cases.

“Ellis Rubin is standing fairly alone on this,” said Michael Adams, a lawyer with Lambda Legal. “We believe you choose legal strategy based on what has the best chance of winning legal rights. … What his agenda is, is unclear to us.”

Mr. Rubin, who recently became senior legal counsel for the Equality Campaign, said his goal is simply to get the same-sex “marriage” issue before the high court.

“Eventually, this will be decided by the justices of the United States Supreme Court and the faster you get there, the faster they hear it,” Mr. Rubin explained.

Matt Foreman, executive director of the National Gay and Lesbian Task Force, said that day will come eventually, but said it is unwise to rush and create bad case law.

“What we need are the best precedents possible when that day comes,” he said, adding that some homosexual legal groups are indeed preparing to file federal challenges to the federal DOMA, likely later this year.

But he said they are choosing states carefully, based on the strength of a state’s equal-protection clause, the makeup of its judiciary and other things.

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