- The Washington Times - Thursday, August 12, 2004

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.

Top-tier states include New York, New Jersey, California, Oregon and Washington. Florida simply does not offer a good chance for success, he said.

Robin Tyler, executive director of the Equality Campaign, a friend of Mr. Rubin and a longtime homosexual-rights activist, said legal groups fighting for homosexual “marriage” have urged she and Mr. Rubin not to pursue federal litigation in Florida.

But she strongly disagrees with “this idea of waiting or we’ll set bad precedents” for the future.

“We want to force the issue before every state comes out with state constitutional amendments,” protecting traditional marriage, she said.

Miss Tyler said the groups’ “hesitation” to pursue federal litigation comes from a fear that too much focus on the issue before the election could backfire and steer people toward President Bush.

“The gay organizations have sold us out,” she said. “They have said that in order to defeat Bush, we have to be quiet … or else we’re going to be responsible for the re-election of George Bush.”

But, she vowed, “we’re not going to wait for anything.”

Mr. Foreman flatly rejected the notion that groups are somehow holding back federal litigation because of the election.

“The election has nothing whatsoever to do with the litigation strategies that are being pursued,” he said.

Mr. Kates agreed, and said state supreme courts are simply “more likely to come out on our side at this time, and that’s where we’ve put our efforts.”

He noted that the 11th U.S. Circuit Court of Appeals — where Mr. Rubin’s federal cases would go — recently upheld a Florida state law banning same-sex couples from adopting children, so it’s unlikely that the same court would rule in favor of Mr. Rubin and same-sex “marriage.”

But Matt Daniels, president of the Alliance for Marriage and leading opponent of same-sex “marriage,” said the ACLU and other activist groups are simply waiting until after the election to “unleash” a host of federal lawsuits across the country, challenging federal DOMA and state laws.

He said the groups know that in this heated election season, the public would react negatively if numerous federal challenges started popping up to force states to accept same-sex “marriages.”

“Once the election is over, they’re going to unleash the lawsuits,” Mr. Daniels predicted.

For his part, Mr. Rubin was at one time on the other side of the issue and actually litigated in the late 1970s against equal rights for homosexuals.

But over years of becoming friends with homosexuals, and hearing from his liberal son, Mr. Rubin says he changed his mind, made a public apology to the homosexual community and decided to fight for same-sex “marriage.”

He currently has eight cases pending in Florida on the subject — 3 federal cases and 5 state cases — all of which he is doing without compensation.

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