Florida Lawyer Seeking Gay Marriage Limelight
By Kavan Peterson, Staff Writer
Ellis Rubin might seem an unlikely crusader for gay rights. In the 1970s, he was singer Anita Bryant's lawyer in her widely publicized fight to overturn a Dade County, Fla., gay rights ordinance. Now, claiming a change of heart, Rubin is racing from courthouse to courthouse in Florida in a push to legalize marriage for same-sex couples.
He currently has eight lawsuits under way in the Sunshine State three federal cases and five state cases -- on behalf of about 40 gay and lesbian couples, making him the biggest private litigator for same-sex marriage in the nation.
Explaining his turnaround on the issue, Rubin told Stateline.org in a telephone interview he now numbers homosexuals among his friends and wants "to atone" for his actions in the Bryant episode.
"A gay called me recently and asked me to represent him to get a marriage license in Broward County, and I studied up and here I am, working pro bono (without fee)," he said.
Yet Rubin's attempts to file precedent-setting lawsuits to legalize same-sex marriage have upset much of the gay-rights legal establishment, which regards him as a publicity hound and a loose cannon whose lawsuits may undermine their own more cautious, coordinated legal agenda.
Gay and civil rights groups such as Lambda Legal and the American Civil Liberties Union (ACLU) are methodically challenging state laws in at least 10 states to try to win more victories like the one in Massachusetts, the only state so far whose supreme court has overturned a state gay marriage ban as unconstitutional. The groups have, however, avoided challenging gay marriage bans in federal courts.
Then along comes Rubin, well-known in Southern Florida for his flamboyant and headline-grabbing legal tactics. In his 53-year career, the 79-year-old lawyer has gained notoriety for innovative and bizarre defense strategies, including failed insanity pleas for two murderers based on "TV intoxication" and over-exposure to pornography, as well as a landmark victory that established the battered-woman syndrome defense for the first time in Florida.
Now, wearing the mantle of equal-marriage-rights champion, Rubin is aiming for the top: to get the U.S. Supreme Court to throw out a federal law that raises the strongest barrier against same-sex marriage and efforts to spread its legality beyond Massachusetts.
He has filed three unprecedented lawsuits in federal courts seeking to overturn the 1996 federal Defense of Marriage Act (DOMA), which allows states to ban same-sex marriage.
His most recent suit, filed Aug. 11 on behalf of a Tampa Bay lesbian couple married in Toronto last month, is the first court challenge to seek recognition of a same-sex marriage performed in Canada. In July, he filed the first lawsuit in the nation to challenge DOMA on behalf of a lesbian couple who wed in Massachusetts and want their marriage recognized by Florida and the rest of the country. His third federal lawsuit, and the five state suits, were filed on behalf of unwed same-sex couples who wish to marry.
The federal lawsuits target U.S. Attorney General John Aschroft and argue that federal and state DOMA laws are unconstitutional. The Aug. 11 suit, filed on behalf of Rev. Phyllis E. Hunt and Vilia Corvision, also argues that DOMA violates the United Nations' Universal Declaration of Human Rights and the North American Free Trade Agreement.
Many gay rights leaders are mightily displeased.
"It's very concerning that he's acting completely on his own without any cognizance or sensitivity to the bigger picture in Florida and other states," said Shannon Minter, legal director for the National Center for Lesbian Rights (NCLR), a California-based organization that has filed a rival lawsuit in Florida in response to Rubin's.
While groups like Lambda, ACLU and NCLR have filed more than a dozen lawsuits seeking marriage rights in at least 10 states (California, Florida, Indiana, Maryland, Massachusetts, Nebraska, New Jersey, New York, Oregon and Washington), their efforts have been closely coordinated and only targeted at state-level same-sex marriage bans.
The gay establishment strategy also conflicts on another front with the efforts of social conservatives and others who insist that voters, not judges, should decide whether gay and lesbians can marry. Such groups are trying to put constitutional amendments blocking same-sex marriages on the ballots in at least a dozen states this fall (Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Oregon and Utah) in an effort to short-circuit lawsuits.
Gay and lesbian couples do not expect to win the right to marry at the ballot box, however. Earlier this month, Missouri voters overwhelmingly approved a constitutional amendment banning same-sex marriage, and polls indicate that voters in other states will follow suit.
So gay rights advocates are counting on the courts to see them through this battle, and they are very particular about their strategy: state-court level first, leading ultimately to a U.S. Supreme Court decision.
That's the approach that worked to perfection in state-by-state lawsuits targeting anti-sodomy laws, which culminated in the landmark 2003 Supreme Court decision Lawrence vs. Texas overturning such laws nationwide. Lambda Legal argued the case.
Now, legal counsel for the gay rights community meet monthly to coordinate the same type of strategy for the same-sex marriage crusade.
"We've had a very careful, thoughtful strategy for initiating litigation in places where we have the best constitutional protections, fair courts and places were we thought we had a favorable political environment," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.
"Florida does not meet any one of those positions," he said, neatly summarizing the gay establishment's dim view of Rubin's one-man show.
Florida is one of three states that explicitly prohibit gays and lesbians from adopting children (along with Mississippi and Utah). The Florida ban, passed in 1977, was a victory for the anti-gay movement started by Rubin's former client, Bryant, a point hardly lost on today's gay leaders.
The 11th Circuit Court of Appeals, considered one of the most conservative appellate courts in the nation, recently upheld Florida's adoption ban. Gay rights activists fear the 11th Circuit would likely strike down Rubin's lawsuits as well and set an unfavorable legal precedent, said Karen Doering, a Miami attorney for NCLR.
"The national legal and political (gay rights) groups have unanimous consensus that this is not yet the right time or place to bring a federal challenge," Doering said.
The lead litigators for same-sex marriage Lambda and the ACLU have not indicated when they plan to challenge DOMA in federal courts, but Foreman said several federal challenges will be launched sometime this fall.
Although Rubin is allied with one gay rights group -- the California-based Equality Campaign headed by lesbian-rights activist Robin Tyler -- he often lambastes the gay rights establishment.
"All they've done is gone around collecting donations, building buildings and sending speakers to preach to the choir, and what have they accomplished?" Rubin said. "Something very big: they got (President George W.) Bush to recommend a constitutional amendment (banning same-sex marriage). Outside of that, they've been totally unproductive. That's my position and the position of my clients."
Gay rights leaders called Rubin's accusations baseless.
They point to a recent victory in Washington state, where on Aug. 4 a superior court judge struck down that state's same-sex marriage ban as unconstitutional -- although he stayed the ruling until the state's Supreme Court has considered the matter. Oregon and California Supreme Courts also are expected to decide on the constitutionality of banning same-sex marriage before the end of the year. Similar lawsuits in other states are pending in lower courts.
Most of these suits were modeled after the successful Massachusetts case argued by Gay and Lesbian Advocates and Defenders on behalf of seven same-sex couples.
The plaintiffs in these cases, which included parents, elderly couples and decorated veterans, were handpicked to be standard-bearers for the marriage equality cause. In the Washington ruling, King County Superior Court Judge William Downing called the ten gay and lesbian couples "model citizens" and wrote, "there is no worthwhile institution that they would dishonor, much less destroy."
In contrast, Rubin has raised some eyebrows with some of his choices of clients in this affair.
The first same-sex marriage lawsuit he filed in February was on behalf of William Ash, a Fort Lauderdale club owner with a long criminal record, including 24 charges of theft and bad-check writing, The Miami Herald reported.
In his second lawsuit, Rubin filed court papers on behalf of 170 denizens of local gay bars in Broward County who had signed up for the lawsuit the night before.
One of his critics, Miami attorney Ronald Guralnick, said Rubin's gadfly tactics sometimes help his clients and sometimes backfire.
"A lot of people don't like (Rubin) because they don't like people who do things for their own self-aggrandizement at the expense of their own client," Guralnick said. "However, I've seen him in court, and there's no reason he can't win it if somebody else could, as long as he really puts his mind to it and doesn't do it just for publicity."