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Sunday, Nov 23, 2014
Politics

Advocates: Florida will have gay marriages someday

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TAMPA ญญ- In the wake of the U.S. Supreme Court ruling on same-sex marriage, supporters say equal marriage rights for same-sex couples will come to Florida - the only questions being when and how.

But leading activists say it's unlikely they'll take the route of a 2014 ballot measure to create a constitutional amendment.

There's not enough time to gather signatures and money for 2014, and even supporters say it's questionable whether they could achieve the 60 percent vote required to change the state constitution.

lnstead, Equality Florida, the state's leading gay rights group, is seeking plaintiffs for a potential legal case challenging Florida's constitutional provision and statute limiting marriage to male-female couples.

"Marriage equality absolutely is coming to Florida, without a doubt," said Equality Florida President Nadine Smith. "The question is what's the quickest path. It may well be that we need to go back to the ballot, but either path means we have to change hearts and minds."

A gay rights group allied with former Libertarian presidential candidate Gary Johnson has announced it will start a petition drive aimed at putting a constitutional amendment on the 2014 ballot.

Johnson, former governor of New Mexico, is honorary chairman of the group Equal Marriage Florida. Longtime aide and spokesman Joe Hunter said Johnson may run again: "All his options are open."

Vanessa Brito, of Miami, organizer of the petition drive, said it's important to take advantage in 2014 of the momentum and publicity from the court's decision.

But Smith responded, "We're not convinced that now is the time.

One prominent Democrat advocating an amendment campaign is former state Sen. Nan Rich, of Weston, a candidate for governor.

In a fundraising email to supporters last week, Rich noted that Florida Gov. Rick Scott said soon after the Supreme Court's decision that he supports continuing the Florida ban. If elected, she vowed, "I will work to pass a new constitutional amendment that will allow Florida to join the rapidly growing ranks of marriage-equality states."

Other advocates say 2014, a year when a big turnout of Democratic voters is less likely because there will be no presidential election, isn't the right time.

"We need a presidential turnout," said Democratic consultant Ana Cruz, of Tampa. "If Hillary Clinton were on the ballot, you'd have supporters coming out of the woodwork."

Cruz said it would be a major mistake for advocates to mount a campaign, squeeze donors for money and then lose, probably taking the issue off the table for years to come.

"We can't get this wrong," she said.

Jackie Lee, who managed the 2010 petition campaign that passed the Fair Districts Florida amendment on legislative boundaries, said it's too late to start a petition and fundraising drive.

Placing an amendment on the 2014 ballot would require 683,149 verified voter signatures - 8 percent of the last presidential election vote total - by Feb. 1, 2014. That means collecting 800,000 or more signatures to provide a safety margin for rejected signatures.

The Fair Districts campaign took more than two years, spent about $9.1 million and passed with 63 percent of the vote while facing comparatively little organized opposition, Lee noted. A marriage amendment likely would have strong opposition and would require at least that much money.

State Republican Party Chairman Lenny Curry didn't respond to a question about whether the party would help fund the opposition.

In the 2008 campaign that led to Florida's constitutional amendment banning same-sex marriage, the party gave $300,000 early on. But Charlie Crist halted the contributions when he took office as governor in 2007. The amendment passed 62 percent to 38 percent after a contentious campaign.

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Mat Staver of Liberty Counsel, a nonprofit law firm that supports religious conservative causes, said he's confident an attempt to repeal it would lose.

"We don't have any major concern that this has any possibility of success ... in any near future," Staver said.

Scott's support for the ban, however, seemed tepid.

"As governor of the state I'll uphold the existing law of the land, and that's the law of our state," he told reporters in a news conference the day the Supreme Court issued its decision.

Asked whether he considered the ban fair, Scott responded, "Well look, it's the law of the land. ... It's my job as governor to uphold the law of the land."

Asked whether he could consider changing his position, he said, "I've been married since I was 19. I believe in traditional marriage."

Florida is among 35 states that ban same-sex marriage. Thirteen states plus the District of Columbia allow it, and two states have no law on the subject, according to the National Conference of State Legislatures.

Polls suggest Floridians' views have been moving toward favoring equal marriage rights for same-sex couples, but there's still no clear evidence of a majority. A December Quinnipiac University poll showed 43 percent in favor of it and 45 percent opposed - a shift from a May 2012 poll showing 50 percent opposed and 40 percent in favor.

The most optimistic polling data show about 54 percent of Floridians in favor, Smith said.

In 2008, the Florida Red & Blue committee that opposed the ban amendment raised about $3.4 million. Bob Farmer, of Miami, finance chairman of that group, said he'd be reluctant to mount a pro-gay marriage campaign now.

"In 2008 we raised nearly $4 million, but we only got 38 percent" of the vote, he said. "I understand public opinion is changing dramatically. But I'm not optimistic about our ability to raise a lot of money based on the performance a few years ago."

In one or two decades, he said, "it will be commonly accepted, and everybody will shrug their shoulders and say they're surprised it didn't come sooner." But for now, "older folks are less receptive, and Florida has a lot of retirees."

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Some experts think a lawsuit would have a better chance of success in the short term.

Smith said Equality Florida's email blast seeking potential defendants produced more than 200 responses.

University of Florida constitutional law specialist Fletcher Baldwin said the court's decision left standing state bans on same-sex marriage while requiring the federal government to honor such marriages from the states that allow them.

But, Baldwin added, the language of the decision suggested the court majority is willing to go further.

"I think it signaled there are five justices now prepared to say the act of marriage can't be prohibited in those states" with bans, he said. "But they haven't yet said it."

He also said the court could require states that don't allow same-sex marriage to honor marriages from other states under the "Full Faith and Credit" clause in Article IV of the Constitution. "I guarantee the court would say that" if an appropriate test case arose, he said.

Mary Meeks, an Orlando civil rights lawyer working with Equality Florida to find plaintiffs for a potential lawsuit and plan a legal strategy, said challenges to bans already are pending in several other states, "and I expect there will be more."

A challenge in one state might apply in others, depending on whether it is a federal or state court and what appeals court level the case reaches.

"In all these affected states, we're all just trying to figure out how to go about it," she said.

But Staver said the court's decision also included language bolstering the right of states to set their own definitions of marriage.

"One section of the opinion clearly talked about states' rights and federalism as the reason why the court went the way it did in the" Defense of Marriage Act case, , he said.

But asked whether that means the court will respect a state ban, he said, "We really don't know."

wmarch@tampatrib.com

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