Judge in Fla. won't accept gay couple's Mass. wedding

In a ruling believed to be the first of its kind, a federal judge in Tampa struck down a lawsuit yesterday by two women who married in Massachusetts and sought to have their union recognized by the state of Florida.

The case appears to be the first time a court has refused to grant recognition to an out-of-state gay couple who married in Massachusetts, according to Mathew Staver, a lawyer for Liberty Counsel, an antigay marriage group, and Ellis Rubin, the Miami lawyer who represented the couple.

"The decision is disappointing, but it's not surprising," Rubin said in a telephone interview last night. "I said from the start that this case would have to be resolved in the US Supreme Court. So this is the first step."

Rubin said the case could be cited as a precedent in lawsuits brought by other out-of-state couples who were married in Massachusetts, when the Bay State became the first to recognize same-sex marriage last May.

"Until we get this resolved, I think other gay couples will have a hard time getting their Massachusetts marriage recognized in their states," Rubin said. "Every other court is going to take this as being very relevant."

Rubin argued in court that the 1996 federal Defense of Marriage Act that lets states ban same-sex marriage -- and the separate, Florida law banning gay marriage -- discriminate on the basis of sexual orientation and deny a fundamental right to marry.

But US District Judge James S. Moody disagreed. Moody, an appointee of former president Bill Clinton, sided with outgoing Attorney General John Ashcroft, who had argued in court filings that the government has a legitimate interest in permitting states to ban same-sex marriages, namely to encourage "stable relationships" to raise children with both biological parents.

Moody ruled that the law was not discriminatory because it treats men and women equally, and that the government had argued compellingly in favor of allowing marriages to form only between men and women.

Moody said he could not declare marriage a "fundamental right," as lawyers for the women had urged him to do. Moody cited past legal cases as establishing states' rights to regulate marriages. "The legislatures of individual states may decide to overturn its precedent and strike down" the law, Moody wrote. "But, until then, this court is constrained to hold [the law] and the Florida statutes . . . constitutionally valid."

The case was brought on behalf of Nancy L. Wilson and Paula Schoenwether, a couple for 27 years. They were married July 2 in Provincetown and filed the federal lawsuit July 20. The suit named as defendants Ashcroft and a local clerk of the court whose office refused to accept the couple's Massachusetts' marriage license.

The suit cited the full faith and credit clause in the US Constitution, which instructs states to honor other states' "public acts," which was later interpreted to include the issuing of driver's licenses or permitting heterosexual marriages.

"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 said.

Wilson, 53, a minister for Metropolitan Community Churches, one of the world's largest congregations of gay Christians, said in a statement that she is prepared to take her challenge to the Supreme Court. "Despite this ruling, we are still married in our hearts, and legally married in Massachusetts," said Wilson, an associate pastor of Metropolitan Community Church in Boston from 1972 to 1975, according to her her church's website.

Schoenwether added: "No civil-rights movement was lost on one bad court decision."

In the days leading up to the May 17 legalization of gay marriage in Massachusetts, Governor Mitt Romney, citing a 1913 law, sought to restrict out-of-state couples from obtaining marriage licenses. Under the guidelines issued by Romney, only couples who claimed a Massachusetts address could be issued a license.

It's not clear what address the couple claimed on their marriage application, but Provincetown was one of several Massachusetts cities and towns that did not closely check for Massachusetts residency before granting marriage licenses.

It is not known how many couples who actually live out of state obtained licenses under those fairly loose rules. The Globe reported in November that 4,266 gay couples had received marriage licenses since same-sex marriage was legalized May 17.

Andrew Koppelman, law professor at Northwestern University who specializes in the gay-marriage movement, said the case never stood much chance of succeeding because it challenged a matter that is fairly settled in case law: that states can set their own laws regulating marriages. The tougher challenges will come from same-sex residents of Massachusetts who wed and then move out of state or are traveling in other states and seek recognition of their marriages, he said.

Florida is among 39 states that have specific state laws banning same-sex marriages, according to Stateline.org, a state news website.

"The basic rule of law here is that the state where you live gets to decide who you can marry," Koppelman said.

Material from the Associated Press was used in this report.