Jun 11, 2004  |  By: PHIL LaPADULA  | COMMENTS     

MIAMI — U.S. Attorney General John Ashcroft was expected to be served last week with court papers in a gay marriage lawsuit filed in Florida.

Miami attorney Ellis Rubin filed the suit last month on behalf of three gay male couples and one lesbian couple. The lawsuit is the first to challenge the constitutionality of the federal Defense of Marriage Act, which defines marriage as a union of one man and one woman and allows states to refuse to recognize gay marriages performed in other states.

Rubin said his office has already served the other three defendants in the case — Florida Gov. Jeb Bush, Florida Attorney General Charlie Crist and Miami-Dade Clerk of Courts Harvey Ruvin.

Ashcroft has 60 days to respond to the suit, and the other defendants have 20 days, Rubin said. The defendants can either file a motion to dismiss or an answer to the suit. Rubin said he expects them to file a motion to dismiss the case.

Rubin is moving forward with the case despite the objections of some gay activists who think the lawsuit was filed at the wrong time and in the wrong place. He rejected suggestions that the time is not right to challenge the federal marriage law.

“I heard that same criticism when Brown vs. Board of Education was filed,” Rubin said.

Fast track to the Supreme Court?
Rubin, who filed a suit in Broward County in February challenging Florida’s gay marriage ban, said he decided to file suit in federal court “because it’s the fastest way to get to the Supreme Court of the United States.”

He explained that a state challenge must first be heard in district and circuit courts.

“We’re eliminating a couple of years by filing in federal court,” he said.

Rubin also noted that the “state laws were copied from the federal law,” which was passed in 1996.

Rubin also dismissed critics who claim he lacks expertise in litigating constitutional cases.

“I don’t pay much attention to the critics because they haven’t been in front of the U.S. Supreme Court,” he said. He pointed to his success in arguing a school desegregation case, Brown v. Dade Christian Schools, in front of the U.S. Supreme Court in 1977.

But Rubin is probably best known as a flamboyant criminal defense attorney who once successfully won a more lenient sentence for a young murder suspect by arguing the man was a victim of “TV intoxication.”

A question of timing
Evan Wolfson, executive director of Freedom to Marry, criticized Rubin’s timing and his go-it-alone style.

“Overall, I think it’s important that we give America time to hear our stories and see the faces of the real families who are at the heart of this civil rights struggle,” Wolfson said. “I think attorneys should be working closely with the civil rights lawyers who have brought us to this point, and not rushing to bang out a lawsuit for which they’ve done nothing to prepare the groundwork. This is not about some race to get in front of a judge. Lawsuits should be brought carefully and with preparation at the right time and in the right place.”

Nadine Smith, executive director of the gay rights group Equality Florida said there is a consensus among gay marriage legal experts that Rubin’s suit is ill-timed.

“The gay legal community has made a compelling argument why the timing and circumstances are not right for a federal challenge,” Smith said. “From all accounts, there is unanimity from the folks who champion this in the courts across the country.”

All fund-raising, no action?
Rubin countered that gay rights groups have spent most of their time lobbying and raising money instead of taking direct action to challenge anti-gay bias in the courts.

“The gay rights groups and lobbying groups are just perpetuating themselves,” he said. “They spend most of their time raising money. And what are they doing with the money? They’re sending more speakers and doing more lobbying.”

But Freedom to Marry’s Wolfson took issue with Rubin’s characterization of gay marriage activists.

“He’s taking some cheap shots at some of my colleagues,” Wolfson said. “Yet they won the right to marry in Massachusetts.”

Rubin said he decided to become involved in the gay marriage battle after some gay couples asked him to represent them. He said he is representing the gay couples for free.

“I’m just the messenger. I’m not the issue,” Rubin said.