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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

REV. NANCY WILSON and DR. PAULA SCHOENWETHER,

Plaintiffs,

v.

Case No. 8:04-cv-1680-T-30TBM

RICHARD L. AKE and JOHN ASHCROFT,

Defendants. _____________________________________/

ORDER

THIS CAUSE comes before the Court upon United States Attorney General John

Ashcroft’s Motion to Dismiss (Dkt. # 31), Memorandum in Support of United States

Attorney General Ashcroft’s Motion to Dismiss (Dkt. # 39), and Plaintiffs’ Memorandum

of Law in Opposition to the United States Attorney General’s Motion to Dismiss (Dkt. # 48).

The Court, having considered the Motion and Memoranda, and being otherwise fully

advised, finds that the Motion should be granted.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Nancy Wilson and Paula Schoenwether allege that they are a lesbian couple

who reside together in the Middle District of Florida. According to the Complaint, Plaintiffs

were legally married in the State of Massachusetts and possess a valid marriage license from

that State. Plaintiffs allege that they personally presented their Massachusetts marriage

license to a Deputy Clerk at the Clerk of the Circuit Court’s Office in Hillsborough County,

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Florida, asking for “acceptance of the valid and legal Massachusetts marriage license.”
(Complaint, ¶ 12). Plaintiffs allege that “[t]heir demand was refused by Defendant Ake,
whose Deputy Clerk stated that according to Federal and Florida law, the Clerk is not
allowed to recognize, for marriage purposes, the Massachusetts marriage license, because
Federal and Florida law prohibit such recognition.” (Complaint, ¶ 12).
Plaintiffs have filed a Complaint for Declaratory Judgment asking this Court to
declare the Federal Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7; 28 U.S.C. § 1738C,1
and Florida Statutes § 741.212,2 unconstitutional and to enjoin their enforcement. Plaintiffs
1 The Defense of Marriage Act (“DOMA”) provides: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S.C. § 1738C.
* * * In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7
2 Florida Statutes § 741.212, Marriages between persons of the same sex, provides:
(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States,
(continued...)
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have sued, in their official capacities, Richard L. Ake, Clerk of the Circuit Court in Hillsborough County, Florida, and United States Attorney General John Ashcroft.3
Plaintiffs allege that the two statutes violate the Full Faith and Credit Clause, the Due Process clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Privileges and Immunities Clause, and the Commerce Clause of the United States Constitution.
Plaintiffs assert that Florida is required to recognize Plaintiffs’ valid Massachusetts marriage license because DOMA exceeds Congress’ power under the Full Faith and Credit Clause. Plaintiffs also argue that twelve United States Supreme Court cases (which Plaintiffs label “The Dynamite Dozen”), beginning with Brown v. Board of Education, 347 U.S. 483 (1954), and ending with Lawrence v. Texas, 539 U.S. 558 (2003), demonstrate a recent trend
2(...continued) or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state. (2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship. (3) For purposes of interpreting any state statute or rule, the term "marriage" means only a legal union between one man and one woman as husband and wife, and the term "spouse" applies only to a member of such a union.
3 Pursuant to Florida Statutes § 741.01(1), marriage licenses are issued by a county court judge or Clerk of the Circuit Court.
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by the United States Supreme Court to expand “the fundamental liberty of personal autonomy in connection with one’s intimate affairs and family relations.” (Plaintiffs’ Memorandum of Law in Opposition (Dkt. # 48), p. 11). Plaintiffs urge this Court to expand on “The Dynamite Dozen” by finding that the right to enter into a same-sex marriage is protected by the Constitution.
Defendant Ashcroft has moved to dismiss Plaintiffs’ Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., on the grounds that the Complaint fails to state a claim upon which relief can be granted.4 The United States, in a well-written Memorandum, argues that Plaintiffs’ Complaint is barred as a matter of law because DOMA does not infringe on any of Plaintiffs’ fundamental rights and is a legitimate exercise of the power granted to Congress by the Full Faith and Credit Clause. 5
MOTION TO DISMISS STANDARD A complaint should not be dismissed pursuant to Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim." Bracewell v. Nicholson Air Services, Inc., 680 F.2d 103, 104 (11th Cir. 1982); see also Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla. 1995) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). For Rule 12(b)6 purposes, the court considers as part of the complaint any written instrument filed with it as an exhibit. See Rule 10(c) Fed. R. Civ. P. (“A copy
4 Defendant Ake filed an Answer and Defenses (Dkt. # 12) to Plaintiffs’ Complaint on August 4, 2004, and an Amended Answer and Defenses (Dkt. # 13) on August 10, 2004.
5 Defendant Ashcroft only moves to dismiss Plaintiffs’ claim that DOMA is unconstitutional and does not address the validity of Florida Statutes § 741.212.
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of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”). In ruling on a motion to dismiss, the court must accept plaintiff's well-pleaded facts as true, and construe the complaint in the light most favorable to the plaintiff. See Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Devel. Corp., 711 F.2d 989, 994-95 (11th Cir. 1983); Rickman, 902 F.Supp. at 233 (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). Regardless of the alleged facts, however, a court may dismiss a complaint on a dispositive issue of law. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas District, 992 F.2d 1171, 1174 (11th Cir. 1993); Hunt v. American Bank & Trust Co., 783 F.2d 1011, 1013 (11th Cir. 1986).
FULL FAITH AND CREDIT CLAUSE Plaintiffs’ Complaint asserts that DOMA conflicts with the Constitution’s Full Faith and Credit Clause. Article IV, Section I of the Constitution provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Plaintiffs argue that “[o]nce Massachusetts sanctioned legal same-gender marriage, all other states should be constitutionally required to uphold the validity of the marriage.” (Complaint, ¶ 23). Plaintiffs believe that the differences in individuals’ rights to enter into same-sex marriages among the States, such as Florida and Massachusetts, is exactly what the Full Faith and Credit Clause prohibits. They also assert that DOMA is beyond the scope of
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Congress’ legislative power under the Full Faith and Credit Clause because Congress may only regulate what effect a law may have, it may not dictate that the law has no effect at all.
This Court disagrees with Plaintiff’s interpretation of the Full Faith and Credit Clause. Congress’ actions in adopting DOMA are exactly what the Framers envisioned when they created the Full Faith and Credit Clause. DOMA is an example of Congress exercising its powers under the Full Faith and Credit Clause to determine the effect that “any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage” has on the other States. 28 U.S.C. §1738C. Congress’ actions are an appropriate exercise of its power to regulate conflicts between the laws of two different States, in this case, conflicts over the validity of same-sex marriages.
Adopting Plaintiffs’ rigid and literal interpretation of the Full Faith and Credit would create a license for a single State to create national policy. See Nevada v. Hall, 440 U.S. 410, 423-24 (1979)(“Full Faith and Credit does not . . . enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.”)(quoting Pacific Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 505-06 (1939)); Williams v. North Carolina, 317 U.S. 287, 296 (1942) (“Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state.”). The Supreme Court has clearly established that “the Full Faith and Credit Clause does not require a State to apply another
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State’s law in violation of its own legitimate public policy.” Hall, 440 U.S. at 422 (citing Pacific Ins. Co, 306 U.S. at 493). Florida is not required to recognize or apply Massachusetts’ same-sex marriage law because it clearly conflicts with Florida’s legitimate public policy of opposing same-sex marriage. See infra pp. 9-18; Fla. Stat. § 741.212.6
BAKER v. NELSON The United States argues that this Court is bound by the United States Supreme Court’s decision in Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810 (1972). In Baker v. Nelson, two adult males’ application for a marriage license was denied by the Clerk of the Hennepin County District Court because the petitioners were of the same sex. The plaintiffs, following the quashing of a writ of mandamus directing the clerk to issue a marriage license, appealed to the Minnesota Supreme Court. Id. at 311, 191 N.W.2d at 185. Plaintiffs argued that Minnesota Statute § 517.08, which did not authorize marriage between persons of the same sex, violated the First, Eighth, Ninth and Fourteenth Amendments of the United States Constitution. Id. at 312, 191 N.W.2d at 186. The Minnesota Supreme Court rejected plaintiffs’ assertion that “the right to marry without regard to the sex of the parties is a fundamental right of all persons” and held that § 517.08 did not violate the Due Process Clause or Equal Protection Clause. Id. at 312-15, 191 N.W.2d at 186-87.
6 Under Plaintiffs’ interpretation of the clause, a single State could mandate that all the States recognize bigamy, polygamy, marriages between blood relatives or marriages involving minor children.
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The plaintiffs then appealed the Minnesota Supreme Court’s ruling to the United States Supreme Court pursuant to 28 U.S.C. 1257(2).7 Under 28 U.S.C. 1257(2), the Supreme Court had no discretion to refuse to adjudicate the case on its merits. Hicks v. Miranda, 422 U.S. 332, 344 (1975). The Supreme Court dismissed the appeal “for want of a substantial federal question.” Baker, 409 U.S. at 810.
Plaintiffs assert that Baker v. Nelson is not binding upon this Court because the Supreme Court did not issue a written opinion and because the case was decided thirty-two (32) years ago, before the “current civil rights revolution.” (Plaintiffs’ Memorandum of Law in Opposition (Dkt. #48), pp. 9-10). This Court disagrees. A dismissal for lack of a substantial federal question constitutes an adjudication on the merits that is binding on lower federal courts. See Hicks, 422 U.S. at 344. As Justice White noted, the Court was “not obligated to grant the case plenary consideration . . . but [the Court was] required to deal with its merits. Id; see also Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959) (“(v)otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case . . .”).

7 At the time, 28 U.S.C. 1257(2) provided:

Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:

the States,

(2) [b]y appeal, where is drawn in question the validity of a statute of any state on ground of its being repugnant to the Constitution, treaties or laws of the United
and the decision is in favor of its validity.

This appeal as of right was eliminated by the Supreme Court Case Selections Act (Public Law 100-352), which became law on June 27, 1988.
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Although Baker v. Nelson is over thirty (30) years old, the decision addressed the same issues presented in this action and this Court is bound to follow the Supreme Court’s decision. See Hicks, 422 U.S. at 344-45 (“lower courts are bound by summary decision by this Court ‘until such time as the Court informs (them) that (they) are not.”)(quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)); see also McConnell v. Nooner, 547 F.2d 54, 55-56 (8th Cir. 1976); Adams v. Howerton, 486 F.Supp. 1119, 1124 (C.D.Cal. 1980), aff’d 673 F.2d 1036, 1039 n.2 (9th Cir. 1982).
The Supreme Court’s holding in Lawrence does not alter the dispositive effect of Baker. See Agostini v. Felton, 521 U.S. 203, 207 (1997) (“The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decision.). The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today.8 Accordingly, Baker v. Nelson is binding precedent upon this Court and Plaintiffs’ case against Attorney General Ashcroft must be dismissed.
8 This Court disagree’s with the holding in In re Kandu, 315 B.R. 123, 138 (W.D.Wash. 2004), that Baker is not binding precedent.
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DUE PROCESS Recent Eleventh Circuit precedent also constrain this Court to rule contrary to Plaintiffs’ position. Plaintiffs argue that their right to marry someone of the same sex is a fundamental right that is guaranteed by the Fourteenth Amendment’s Due Process Clause.9 If Plaintiffs’ have a fundamental right to enter into a same-sex marriage, then this Court must apply a “‘strict scrutiny’ analysis that forbids government infringement on a fundamental liberty interest ‘unless the infringement is narrowly tailored to serve a compelling state interest.’” In re Kandu, 315 B.R. 123, 138 (W.D.Wash. 2004)(quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). If the right to marry someone of the same sex is not a fundamental right, then the Court will apply the more liberal rational basis analysis in determining whether DOMA is constitutional. Glucksberg, 521 U.S. at 728. The Supreme Court has defined fundamental rights as those liberties that are “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 32526 (1937)). The Court observed that the Due Process clause “specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’” Glucksberg, 720-21 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)(plurality opinion)).
9 The Court notes that the Fourteenth Amendment only applies to the states and not the federal government. Plaintiffs’ claim should have been brought pursuant to the Due Process Clause of the Fifth Amendment.
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Although the Supreme Court has held that marriage is a fundamental right, Glucksberg, 521 U.S. at 720, no federal court has recognized that this right includes the right to marry a person of the same sex. See Kandu, 315 B.R. at 139; Standhardt v. Superior Court of Arizona, 206 Ariz. 276, 281, 77 P.3d 451, 456 (2003). Plaintiffs urge this Court to interpret the Supreme Court’s decision in Lawrence v. Texas as establishing a fundamental right to private sexual intimacy. Plaintiffs argue that this Court should expand the fundamental right recognized in Lawrence to include same-sex marriages.
In Lawrence, the Supreme Court struck down a Texas statute that criminalized private sexual conduct between consenting adults of the same sex. 539 U.S. at 578-79. The Court found that the statute could not stand under rational review because it did not further a legitimate state interest that justified the intrusion into the personal lives of homosexuals. Id.
But the Supreme Court’s decision in Lawrence cannot be interpreted as creating a fundamental right to same-sex marriage. First, the Eleventh Circuit disagrees with Plaintiffs’ assertion that Lawrence created a fundamental right in private sexual intimacy and this Court must follow the holdings of the Eleventh Circuit. See Lofton v. Sec. of Dept. of Children and Family Servs., 358 F.3d 804, 817 (11th Cir.), reh’g en banc denied by, 377 F.3d 1275 (2004), and cert. denied, 543 U.S. ___ (2005) (“We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right.”); Williams v. Pryor, 378 F.3d 1232, 1238 (11th Cir. 2004); see also Standhardt, 206 Ariz. at 281-82, 77 P.3d at 456-57. The Court in Lawrence did not find private sexual conduct
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between consenting adults to be a fundamental right. Lawrence, 539 U.S. at 586 (Scalia, J., dissenting) (“nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’”). Rather, the Court determined that the Texas statute failed under the rational basis analysis. Lawrence, 539 U.S. at 578-79.
Second, the majority in Lawrence was explicitly clear that its holding did not extend to the issue of same-sex marriage, stating that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence 539 U.S. at 578; see also Standhardt, 206 Ariz. at 282, 77 P.3d at 457 (“If the Court did not view such an intimate expression of the bond securing a homosexual relationship to be a fundamental right, we must reject any notion that the Court intended to confer such status on the right to secure state-sanctioned recognition of such a union.”). It is disingenuous to argue that the Supreme Court’s precise language in Lawrence established a fundamental right to enter into a same-sex marriage.
Moreover, this Court is not inclined to elevate the ability to marry someone of the same sex to a fundamental right. Although the Court recognizes the importance of a heterosexual or homosexual individual’s choice of a partner, not all important decisions are protected fundamental rights. Glucksberg, 521 U.S. at 727-28. The Supreme Court has cautioned against the dangers of establishing new fundamental rights:
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By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court. Glucksberg, 521 U.S. at 720.
The Eleventh Circuit has also noted that once a right is elevated to a fundamental
right, it is “effectively removed from the hands of the people and placed into the
guardianship of unelected judges. We are particularly mindful of this fact in the delicate area
of morals legislation.” Williams, 378 F.3d at 1250 (internal citations omitted). “Of course,
the Court may in due course expand Lawrence’s precedent . . . [b]ut for us preemptively to
take that step would exceed our mandate as a lower court.” Williams, 378 F.3d at 1238; see
also Lofton, 358 F.3d at 827 (the “legislature is the proper forum for this debate, and we do
not sit as a superlegislature ‘to award by judicial decree what was not achievable by political consensus.’”) (quoting Thomasson v. Perry, 80 F.3d 915, 923 (4th Cir. 1996)).10 Therefore,
the Court finds that the right to marry a person of the same sex is not a fundamental right
under the Constitution.
EQUAL PROTECTION
10 The Court also rejects Plaintiff’s argument that “[s]anctioning same-sex sex and then not allowing a formal same-sex marriage based on love and commitment is illogical and incongruous.” (Plaintiffs’ Memorandum of Law in Opposition (Dkt. # 48), p. 8). Plaintiffs’ argument is flawed because the Supreme Court did not sanction homosexual sex in Lawrence, rather the Court merely held that Texas could not criminalize private sexual conduct between consenting adults of the same sex. The Eleventh Circuit has noted that there is a distinct difference between protecting the right to engage in private conduct without facing criminal sanctions and the “affirmative right to receive official and public recognition.” Lofton, 358 F.3d at 817.
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Plaintiffs also argue that this Court should apply strict scrutiny in determining the constitutionality of DOMA because it violates the Equal Protection Clause of the Fourteenth Amendment.11 The Eleventh Circuit has held that homosexuality is not a suspect class that would require subjecting DOMA to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment or the equal protection component of the Fifth Amendment’s Due Process Clause. See Lofton, 358 F.3d at 818 (holding that homosexuality is not a suspect class and noting that “all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.”); see also Kandu, 315 B.R. at 144 (Lawrence “did not hold that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis”) Moreover, DOMA does not discriminate on the basis of sex because it treats women and men equally. Kandu, 315 B.R. at 143 (“. . . DOMA does not classify according to gender, and the Debtor is not entitled to heightened scrutiny under this theory.”). Therefore this Court must apply rational basis review to its equal protection analysis of the constitutionality of DOMA.
RATIONAL BASIS REVIEW As the Court noted above, because Plaintiffs do not have a fundamental right to enter into a same-sex marriage and because DOMA does not create a suspect classification, the constitutionality of DOMA is reviewed under the rational basis test. Under rational basis
11 The Court again notes that the Fourteenth Amendment only applies to the states and that Plaintiffs’ equal protection claims should have been brought pursuant to the equal protection component of the Due Process Clause of the Fifth Amendment. See Kandu, 315 B.R. at 141-42.
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review, this Court must determine whether the challenged legislation is rationally related to a legitimate state interest. See Lofton, 358 F.3d at 818 (citing Heller v. Doe, 50 U.S. 307, 313-14 (1993)). “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 580 U.S. 307, 313 (1993). Rational basis review is “very deferential to the legislature, and does not permit this Court to interject or substitute its own personal views of DOMA or same-sex marriage.” Kandu at 145. This presumption of validity remains true “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Lofton, 358 F.3d at 818 (quoting Romer v. Evans, 517 U.S. 620, 632 (1996)).
The burden in on the Plaintiffs to negate “every conceivable basis which might support [the legislation], whether or not the basis has a foundation in the record.” Id. at 818, (quoting Heller 50 U.S. at 320-21). The United States has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. (quoting Heller, 50 U.S. at 320). “A statutory classification fails rational-basis review only when it ‘rests on grounds wholly irrelevant to the achievement of the State’s objective.’” Heller, 50 U.S. at 324 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978)).
The United States asserts that DOMA is rationally related to two legitimate governmental interests. First, the government argues that DOMA fosters the development of
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relationships that are optimal for procreation, thereby encouraging the “stable generational continuity of the United States.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). DOMA allegedly furthers this interest by permitting the states to deny recognition to same-sex marriages performed elsewhere and by adopting the traditional definition of marriage for purposes of federal statutes. Second, DOMA “encourage[s] the creation of stable relationships that facilitate the rearing of children by both of their biological parents.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). The government argues that these stable relationships encourage the creation of stable families that are well suited to nurturing and raising children.
Plaintiffs offer little to rebut the government’s argument that DOMA is rationally related to the government’s proffered legitimate interests. Rather, Plaintiffs repeatedly urge the Court to apply the more rigid strict scrutiny analysis.
Although this Court does not express an opinion on the validity of the government’s proffered legitimate interests, it is bound by the Eleventh Circuit’s holding that encouraging the raising of children in homes consisting of a married mother and father is a legitimate state interest. See Lofton, 358 F.3d at 819-20. DOMA is rationally related to this interest. Moreover, Plaintiffs have failed to satisfy their burden of establishing that DOMA fails
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rational basis review. See Lofton, 358 F.3d at 818-19; Kandu, 315 B.R. at 148.12 Accordingly, the United States’ motion to dismiss is granted.13
CONCLUSION In short, Plaintiffs’ argument is that, given their recent “civil rights revolution,” the United States Supreme Court is likely to declare that same-sex marriage is a fundamental right that is protected by the Constitution. Plaintiffs are asking this Court to create such a fundamental right immediately, before the Supreme Court revisits the issue of same-sex marriage. But that is not this Court’s role. This Court is bound to follow the precedent established by the Eleventh Circuit Court of Appeals and the United States Supreme Court. None of their precedent acknowledge or establish a constitutional right to enter into a samesex marriage. The legislatures of the individual states may decide to permit same-sex marriage or the Supreme Court may decide to overturn its precedent and strike down DOMA. But, until then, this Court is constrained to hold DOMA and Florida Statutes § 741.212 constitutionally valid. It is therefore ORDERED AND ADJUDGED that:
12 Moreover, despite Justice Scalia’s fears in Lawrence, the Eleventh Circuit has recently reiterated that the “furtherance of public morality [is] a legitimate state interest.” Williams, 378 F.3d at 1238 n.8. “One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence if now such a traditional and significant jurisprudential principal has been jettisoned wholesale (with all due respect to Justice Scalia’s ominous dissent notwithstanding). Id.
13 The Court also finds that Plaintiffs’ arguments that DOMA violates the Privileges and Immunities Clause and the Commerce Clause are without merit. See Saenz v. Roe, 526 U.S. 489, 500 (1999); C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 402 (1994); Nehme v. I..N.S., 252 F.3d 415, 430 n.18 (5th Cir. 2001).
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Case 8:04-cv-01680-JSM-TBM Document 59 Filed 01/19/05 Page 18 of 18 PageID 394 1. United States Attorney General John Ashcroft’s Motion to Dismiss (Dkt. # 31) is GRANTED. 2. Plaintiffs’ claim against Defendant Ashcroft is dismissed and the Clerk is directed to terminate him as a party. DONE and ORDERED in Tampa, Florida on January 19, 2005.
Copies furnished to: Counsel/Parties of Record
S:\Even\2004\04--cv-1680.US mtd.wpd
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

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CIVIL ACTION NO.: FOR DECLARATORY JUDGMENT

REV. NANCY WILSON and DR. PAULA SCHOENWETHER,

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Plaintiffs,

v.

RICHARD L. AKE, in his official capacity as Clerk of the Circuit and County Courts, Hillsborough County, Florida; and JOHN ASHCROFT, in his official capacity as Attorney General of the United States and head of the Department of Justice ofthe United States,

Defendants.

COMPLAINT FOR DECLARATORY JUDGMENT
CLAIM OF UNCONSTITUTIONALITY
1. This Court has jurisdiction pursuant to 28 U.S. Code 1331. This is a civil action arising under the Constitution and laws of the United States presenting a substantial Federal question.
2. Venue is properly in the Middle District of Florida, Tampa Division, pursuant to 28 United States Code 1391. Both Defendants AKE and ASHCROFT have offices for the conduct of official business in Hillsborough County, Florida: also a substantial part of the events or omissions giving raise to the claim occurred in the Middle District of Florida, Tampa Division.
3. This is an action for a Declaratory Judgment pursuant to 28 U.S. Code 2201 and Rule 57 of the Federal Rules of Civil Procedure for the purpose of determining an actual and existing justiciable controversy to declare the rights and other legal relations and

Case 8:04-cv-01680-JSM-TBM Document 1 Filed 07/20/04 Page 2 of 15 PageID 7
questions of construction and/or the validity of an Act of Congress and a Florida Statute between the parties as hereinafter more fully appears.
BACKGROUND
4. Through the institution of marriage, society publicly guarantees individuals respect and legitimacy as a couple. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. The ability to marry and to thereby participate in this fundamental societal institution is something that most Americans take for granted. Florida Same-sex couples do not; they are denied access solely on the basis of their sexual orientation and gender.
5. The Supreme Court of the United States has found that the right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference. As Mr. Chief Justice WARREN said in Virginia, 87 S. Ct. 1817 (1967) atp. 1824;
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."
This right is vitiated if one is denied the right to marry a person of one's choice; the decision to marry is among the personal decisions that is part of the fundamental "right of privacy" protected by the Fourteenth Amendment.
6. Our highest court has also mandated that if a law "impinges upon a fundamental right explicitly or implicitly secured by the Constitution, (it) is presumptively unconstitutional." As a result, the burden shifts to the government to pass a "strict scrutiny" test by the courts for certain classifications and fundamental rights to be valid; the government must justify an intrusion on Plaintiffs' fundamental rights of privacy, liberty and autonomy found in the Due_ Process Clause and the right of equality in the Equal Protection Clause. Excluding same-sex couples from a basic element of civic life marr1age infringes human dignity and violates the Constitution of the United States, which affirms the dignity and equality of all individuals; it forbids the creation of second-
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class citizens. There is no identifiable constitutionally adequate reason for denying civil marriage to same-sex couples. Plaintiffs would show that the Act of Congress and the Florida Statute under the microscope here and both of which define "marriage" as a legal union between one man and one woman as husband and wife AND which prohibit recognition of same-sex marriages - - can meet constitutional muster ONLY if they further a compelling governmental interest and the legislation substantially furthers that interest, doing so through the least restrictive means to overcome the constitutional right. The ordinary deference due legislation does not apply when fundamental constitutional rights are implicated.
7. Plaintiffs ask this Court to construe constitutional rights which operate in favor of the individual against government so as to achieve the primary goal of individual freedom and autonomy - - especially where homosexuals are the traditional targets of unfair, irrational and unlawful discrimination.
8. The legislative decisions of Congress and Florida are clearly erroneous, arbitrary or wholly unwarranted here; their decisions clearly transgress private rights. In spite of the foregoing, the United States' and Florida's statutory codes as detailed later, do not permit marriages of lesbian and gay couples. It is this selective denial of marriage equality to this disfavored group that has led to this action.
PLAINTIFFS
9. Plaintiffs are a lesbian couple who are citizens of the United States, over 18 years of age seeking to live a full life by availing themselves of a marriage universally recognized, the social validation it confers, and the hundreds of rights, responsibilities, benefits and obligations that it affords and which are predicated on marriage under the laws of the United States and the State of Florida. These Plaintiffs share the same goal as countless "straight" American couples; their reasons for wanting to engage in a recognized civil ceremony of marriage are the same as the reasons of heterosexual couples. Plaintiffs seek only to be married, not to undermine the institution of marriage; they do not want marriage abolished; they do not attack the binary nature of marriage, the consanguinity provisions or any of the other gate-keeping provisions of marriage licensing laws. Recognizing same-sex marriages will not diminish the nature, dignity or validity of opposite-sex marriages.
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10. Plaintiffs do not have another living wife or husband; they are not first cousins or any nearer of kin to each other; and neither is incapable for want of legal age or sufficient understanding. They consent freely to marry each other; but for the fact that they are same-sex couples, the United States and the State of Florida would recognize their marnage.
11. The Plaintiffs want to live with the confidence that, if one of them unexpectedly dies or becomes disabled or sick, the other will have all of the protections that marriage in Florida affords. Although they have tried to make arrangements to maximize economic and legal protections for their families' well-being, marriage affords greater security in light of the many legal benefits that are reserved for spouses. These Plaintiffs need the benefits of marriage to protect themselves from economic hardship and discrimination.
12. Plaintiffs have been legally married in the State of Massachusetts and now hold a valid marriage license from that State. They have personally presented that marriage license to a Deputy Clerk of the Hillsborough Circuit Court Clerk's Office, asking for recognition and acceptance of the valid and legal Massachusetts marriage license. Their demand was refused by the Defendant AKE, whose Deputy Clerk stated that according to Federal and Florida law, the Clerk is not allowed to recognize, for marriage purposes, the Massachusetts marriage license, because Federal and Florida law prohibit such recognition. As a result, the United States and the State of Florida send a stigmatizing message that Plaintiffs are less worthy than other Americans and that their relationship is inferior to those of other Americans.
13. Plaintiff REV. NANCY WILSON is a senior pastor of the Metropolitan Community Church and Plaintiff DR. PAULA SCHOENWETHER is a Ph.D and a former family marriage counselor. They lived together and are residents of the Middle District of Florida.
DEFENDANTS
14. Defendant RICHARD L. AKE is the duly elected Clerk of the Circuit and County Courts in and for the 13th Judicial Circuit of Florida and, pursuant to Florida Statute 741.01 (1), is the public official who shall issue every marriage license upon application for the
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license, "if there appears to be no impediment to the marriage." He is also the proper official to recognize and record legal marriage licenses, if requested to do so. This Defendant is sued in his official capacity. Defendant JOHN ASHCROFT is the duly appointed Attorney General of the United States. According to 28 U.S. Code § 501, The Department of Justice is an executive department of the United States at the seat of Government. Section 503 designates that, "The Attorney General is the head of the Department of Justice;" and "all functions of agencies and employees of the Department of Justice are vested in the Attorney General. .. " (Section 509). The Attorney General has discretion in deciding whether the United States is concerned in particular civil actions; and the head of any executive department of the United States "may require the opinion of the Attorney General on questions of law arising in the administration of his department" (Section 512). 28 U.S. Code § 516 reserves to the Department of Justice "the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested... " under the direction of the Attorney General. This Defendant is sued in his official capacity. He has confirmed his support and approval of the Federal Act of Congress that does not permit marriages of same-sex couples or recognition of same by any State.
THE QUESTIONED ACT OF CONGRESS
15. In 1996, the Congress of the United States enacted into law The Defense of Marriage Act, 110 Stat. 2419 (1996), Title 28, Chapter 115, U.S. Code, Section 1738C and Chapter 1 of Title 1, U.S. Code, Paragraph 7. A copy of the full Act is attached hereto as Exhibit "A" and should be considered a part of this Complaint. Basically, the Federal DOMA defines marriage as "only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." This definition excludes Plaintiffs from federal rights and benefits including but not limited to Social Security, family and medical leave, rights of survivorship, rights of visitation for medical reasons, the right to file joint tax returns, certain evidentiary rights, etc. In all, the U.S. General Accounting Office has counted 1,138 statutory provisions in which marital status is a factor in determining or receiving "benefits, rights and privileges." This Act of Congress also requires any State not to give effect to any public act of any other State respecting a relationship, right or claim between persons of the same sex treated as a marriage under the laws of such other State. And where federal programs set the eligibility requirements for many federally funded State of Florida programs, those
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corresponding Florida programs will not be allowed to treat same-sex couples as married either; thus excluding them from (or profoundly affecting the calculation of) entitlement to benefits under many such Florida programs. Florida officials - - not just Federal officials will, of necessity, have to differentiate between same-sex and opposite-sex couples for all of these Florida programs.
16. At present, Plaintiffs would not have access to Florida's courts for purposes of obtaining a divorce or separation and the necessary orders (with respect to alimony, child support or child custody) that accompany a divorce or separation.
THE FLORIDA STATUTE
17. In 1997, the Florida legislature followed Congress' lead and adopted as law The Florida Defense of Marriage Act, Section 741.212 (1), (2) and (3), Florida Statutes, a copy of which is attached hereto as Exhibit "B" and should be considered a part of this Complaint. F.S. 741.212 does not allow Florida to recognize or give effect to marriages between persons of the same-sex entered into in or outside of Florida, the United States of America or any other jurisdiction, either domestic or foreign. The Florida DOMA also tracks the Federal DOMA definition of "marriage" as "only a legal union between one man and one woman as husband and wife ... " Among the hundreds ofbenefits, rights and privileges granted to different-sex couples who marry in Florida but which are not granted to same-sex couples who desire to marry in Florida or have a foreign marriage license recognized in Florida are:
Equal rights and property acquired during the marriage, the right to hold property as tenants by the entireties, the right to rehabilitative or permanent alimony in a proceeding for the dissolution of marriage, the right to an elective share in the estate of a deceased spouse, the right to enter into a gestational surrogacy, distribution rights in homestead property, legitimacy of children born out of wedlock upon the marriage of the parents, etc.
THE ISSUES
18. The questions this Court is asked to consider are whether it is constitutional to create a separate class of citizens by status and gender discrimination, withholding from that class the right to participate, anywhere in the world, in the fundamental institution of civil
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mamage with its attendant protections., benefits and obligations; AND whether it is constitutional to deny any citizen of the United States the right of recognition of a valid and legal marriage license from one state, territory or country to another. Plaintiffs challenge this combination of the Act of Congress and the Florida Statute as a violation of both their fundamental rights and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as being a violation of the Full Faith and Credit Clause, the Privileges and Immunities Clauses and the Commerce Clause of the Constitution of the United States.
THE EQUAL PROTECTION CLAUSE
" .... No State shall .... deny to any person within its jurisdiction the equal protection of laws." United States Constitution, Amendment XIV, Section I.
19. The Fourteenth Amendment does not tolerate unjustified discrimination against a disfavored class. The exclusion of lesbian and gay couples from marriage violates this most fundamental and basic constitutional guarantee of equality of privileges and immunities for all Americans. Plaintiffs urge that this Act of Congress and the Florida Statute make it more difficult, if not impossible, for them than for all others to seek to be civilly married; that this is itself a denial of equal protection in the most literal sense. A bare desire to harm a politically unpopular group cannot constitute a legitimate government interest; the Act of Congress and the Florida Statute at issue raise the inevitable inference that they were born of animosity toward the class that they were to affect. The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."
20. Plaintiffs would also show that these Statutes are a "status-based" classification of persons undertaken for its own sake, something the Equal Protection Clause does not
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permit. Plaintiffs, solely because of their sexual orientation, by Federal and Florida decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. Congress and Florida withdraw from homosexuals, BUT NO OTHERS, specific legal protection from the injuries caused by discrimination. These Defendants have imposed a special disability upon the Plaintiffs alone. Homosexuals are forbidden the safeguards, benefits and rights of civil marriage that others enjoy or may seek without constraint. These Florida and Federal Statutes not only lack a rational relationship to legitimate Federal and State interests, but this classification also was drawn for the purpose of disadvantaging the group burdened by these laws.
21. Guaranteed to all people in this country equally is the enjoyment of rights that are deemed important or fundamental. The withholding of relief from the Plaintiffs who wish to marry and are otherwise eligible to marry on the ground that the couples are of the same gender constitutes a categorical restriction of a fundamental right. The restriction creates a straight forward case of discrimination that disqualifies an entire group of our citizens and their families from participation in an institution of paramount legal and social importance because of their sex or gender. This is impermissible under the Fourteenth Amendment of the Constitution. The Supreme Court has already struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. "We concluded that the provision was 'born of animosity toward the class of persons affected' and further that is had no rational relation to a legitimate governmental purpose." Because these questioned marriage statutes intend and state that marriage under our law consists only of a legal union between a man and a woman, they create a statutory classification based on the sex of the two people who wish to marry. That the classification is sex based is self-evident. As a factual matter, an individual's choice of a marital partner is constrained because of his or her own sex. Only their gender prevents the Plaintiffs from marrying their chosen partners under the present law. By enacting these questionable laws mandating that gays and lesbians shall not have any of the rights, benefits and protections awarded to married heterosexuals, Defendants inflict on these Plaintiffs immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. Plaintiffs contend that these statutes classify homosexuals, not to further a proper legislative end, but to make them unequal to everyone else. The United States and Florida cannot so deem a class of persons a stranger to its laws. Moreover, the substantive equal protection guarantees of the Constitution
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prohibit an unjustifiable burden on the fundamental right to equality and nondiscrimination. The failure to permit marriages of same-sex couples constitutes an unjustified denial of a privilege based on sexual orientation and gender. The Act of Congress and the Florida Statute under consideration violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
DUE PROCESS CLAUSE
" ....;nor shall any State deprive any person of life, liberty, or property without due process oflaw... " United States Constitution, Amendment XIV, Section I.
22. Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously prote~t the individual's right to marry against undue government incursion. The United States Supreme Court has read into the Federal Constitution an implicit right of privacy, which includes the right to liberty and self-determination. That Court has also reaffirmed the substantive force of the liberty protected by the Due Process Clause. "Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." In explaining the respect the Constitution demands for the autonomy of the person in making these choices, the Supreme Court has held:
"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
"Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." The Defendants cannot show that their discriminatory laws bear a close relationship to the promoting of a compelling state interest or that the classification is necessary to achieve the government's goal or that the classification is narrowly drawn to achieve the goal by the least restrictive means possible - - all of which are required when, such as
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here, laws impinge on certain fundamental rights that will be subjected to strict judicial scrutiny and the presumption that such laws are unconstitutional. The Plaintiffs' liberty, privacy and autonomy safeguards in the United States Constitution protect both "freedom from" unwarranted government intrusion into protected spheres of life and "freedom to" partake of benefits created by the State for the common good. Both freedoms are involved here. Whether. and whom to marry, how to express sexual intimacy, and whether and how to establish a family - -these are among the basics of everyone's liberty, privacy and self-determination due process rights. The liberty interest in choosing whether and whom to marry would be hollow if the State could foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage. The substantive due process guarantees of the Constitution prohibit an unjustifiable burden on the fundamental right to privacy, liberty and autonomy, including the fundamental right to enter into a civil marriage. This Act of Congress and the Florida Statute violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
THE FULL FAITH AND CREDIT CLAUSE
"Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State." United States Constitution, Article IV, Section 1.
23. Plaintiffs urge this Court to compare this constitutional requirement with the wording and intent of 28 United States Code 1738C, which mandates that "No State... shall be required to give effect to any public act, record, or judicial proceedings of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State ... , or a right or claim arising from such relationship." And Florida Statute 741.212 (1) also bars recognition of same-sex marriages from any other state and within Florida. The Constitution clearly mandates that the public Acts, Records, and Judicial Proceedings of each State SHALL be given FULL FAITH AND CREDIT by every other State. Congress and Florida, on the other hand, say NO! The States SHALL NOT be required to give FULL FAITH AND CREDIT to those Acts respecting same-sex marriages. This is a conflict that should be resolved in favor of the United States Constitution.
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The Full Faith and Credit Clause is an essential part of our federal system of government. The drafters sought to transform several independent sovereign entities into one cohesive nation; "it was clearly not to continue a relation of several, separate sovereign states with various contradicting laws possessing no effect beyond each state's bordel.1The Federal Act under consideration here is beyond the scope of congressional legislative power because of the Full Faith and Credit Clause. Each state has an interest in the marital status of those domiciled within the state. Once Massachusetts sanctioned legal same-gender marriage, all other states should be constitutionally required to uphold the validity of the mamage. The differentiation among the states (here, Massachusetts and Florida) is exactly what the Full Faith and Credit Clause was intended to prohibit. A valid marriage, hence a valid same-gender marriage, should be given full faith and credit in every state in this country. Plaintiffs would urge that not only would Massachusetts have an interest in a valid marriage performed within its jurisdiction, it may also determine the extraterritorial effect of its judgment. Therefore, 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 Florida Legislature, in deciding to cancel out, overrule, and nullify Article IV, Section I by enacting Section 741.212, Florida Statutes, 1997, not only exempted every other State and itself from recognizing same-sex marriages, but also extends the ban to "any other jurisdiction, either domestic or foreign, or any other place or location... " Florida really wants to make sure; however, limiting the jurisdiction of State courts over out-of-state marriage relationships is a violation ofthis Clause. No sister state has such an overriding valid interest in the Florida Statute or the Act of Congress such that the sister state's own constitution and laws can be ignored by surrendering jurisdiction, subject matter and fundamental due process to another State. The same-sex prohibitions in question constitute infringement of that sister state's sovereignty. No out-of-state judicial proceedings can gain or exert jurisdiction over the Defendant AKE or any other Florida official in order for the other State to direct AKE to issue or not issue a marriage license to Floridians. This Act of Congress and the Florida Statute violate the FULL FAITH AND CREDIT CLAUSE ofthe United States Constitution.
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THE PRIVILEGES AND IMMUNITIES AND THE COMMERCE CLAUSES
24. Attached hereto as Collective Exhibit "C" are the Privileges and Immunities Clause (Article 4, Section 2) and the Commerce Clause (Article 1, Section 8) of the United States Constitution. Together with the Privileges and Immunities Clause found in Section 1 of the Fourteenth Amendment, these three provisions of our organic law have been interpreted by our highest court to make interstate travel a national concern that states may not infringe on through diverse treatment... "a state law implicates the right to travel when it actually deters such travel... or when it uses 'any classification which serves to penalize the exercise of that right."' The Act of Congress and the Florida Statute under question in this case implicates this right because these Plaintiffs who were legally married in Massachusetts were deterred from traveling to Florida. One of the reasons? If one of the parties to the marriage faces a medical emergency, Florida would not recognize the other's legal right to make medical decisions for her spouse. A state may not interfere with the constitutional right to interstate travel by denying legal rights to those who have recently moved. This Act of Congress and Florida Statute denies the legally married Plaintiffs all of the legal rights, privileges and immunities normally granted to a valid marriage. Plaintiffs would urge this Court to find, as the U.S. Supreme Court has noted, "If a law has 'no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional."' Thus, this Act of Congress and Florida Statutes 741.212 are similarly unconstitutional.
RELIEF SOUGHT
25. The refusal of the Defendant AKE to recognize and accept the valid and legal marriage license issued to the Plaintiffs by the State of Massachusetts and Congress' edict to not recognize same-sex marriage in any State have left the Plaintiffs in doubt and uncertain about their rights under said State and Federal Statutes; thus giving rise to a justiciable controversy and an actual rather than a theoretical controversy as to the validity and constitutionality ofthe Act of Congress and Florida Statute 741.212. The Defendants contend that these two almost identical laws are constitutional; Defendant AKE has already enforced these statutes against these Plaintiffs and Defendant
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ASHCROFT seeks to and has announced intentions to enforce these laws. Accordingly, an active justiciable controversy has arisen and now exists between the Plaintiffs and the Defendants concerning their respective rights, duties and responsibilities. The controversy is definite and concrete, touching on the legal relations of the parties. Title 28 U.S. Code 2201 and Ru1e 57 of the Federal Rules of Civil Procedure (Declaratory Judgments) allow this Court to render declaratory judgments on the existence or nonexistence of any immunity, power, privilege or right OR of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend; and when and where such immunity, power, privilege or right now exists or will arise in the future. Section 2201 and Rule 57 also permits this Court to order a speedy hearing and may advance it on the calendar.
26. Pursuant to F.S. 86.091 the State Attorney for the Thirteenth Judicial Circuit of Florida is being served with a copy of this Complaint so that he may be heard in this action.
WHEREFORE, for the reasons set forth above, Plaintiffs pray for relief as follows:
1. An Order of this Court advancing this cause on its calendar and granting a speedy hearing thereof; and
2. A Declaration that this Court has jurisdiction of a real and active justiciable controversy between these parties; and
3. A Declaration that the right to marry is fundamental under the Fourteenth Amendment and that restrictions on fundamental rights are presumed unconstitutional; thus are entitled to this Court's "strict scrutiny" standard; and
4. A Declaration that the Act of Congress and the Florida Statute under consideration herein do not further a compelling State interest nor has Congress and Florida employed the least restrictive means to overcome Plaintiffs' constitutional rights; and
5. A Declaration of the Plaintiffs' Rights, Status and other equitable and other legal relations as to Florida Statute 741.212 and the Act of Congress; and a Declaration of the power and duties of the Defendants in applying these laws to the Plaintiffs; and
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6. A Declaration that F.S. 741.212 and the Act of Congress at issue are unconstitutional in that they violate the Fourteenth Amendment's Equal Protection and Due Process Clauses, the Full Faith and Credit Clause of the United States Constitution, the Privileges and Immunities Clause of the Fourteenth Amendment, and the Privileges and Immunities Clause of Article 4, Section 2 of the United States Constitution and Commerce Clause (Article 1, Section 8) of the United States Constitution and thus are void and unenforceable; and
7. A Declaration that Florida Statutes and the Act of Congress at issue are unconstitutional in that they impermissibly discriminate on the basis of sexual orientation and gender in violation of the Constitutions of the United States and Florida; and
8. A Declaration that the Act of Congress and the Florida Statute at issue under consideration are unconstitutional in that they impermissibly violate the liberty interests protected by the Equal Protection and Due Process Clauses of the United States and Florida Constitutions; and
9. A Declaration that the Act of Congress and the Florida Statute under consideration and at issue are unconstitutional in that they impermissibly violate privacy interests protected by the United States and Florida Constitutions; and
10. A Declaration that the Act of Congress and Florida Statute under consideration and at issue are unconstitutional in that they impermissibly violate the Privileges and Immunities Clauses and the Commerce Clause of the United States Constitution; and
11. A Declaration that eligible same-sex couples enjoy and are entitled to the benefits, protections, rights and responsibilities afforded opposite-sex couples by the marriage laws of the State of Florida and of the United States; and
12. A Declaration that if the preceding Declarations are granted, then Plaintiffs would be entitled by law to compel the Defendants and the State of Florida and the United States to recognize and apply the Massachusetts license to marry issued to the Plaintiffs by the State of Massachusetts in the State of Florida and elsewhere.
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13. Costs, including but not limited to any and all other relief to which the Plaintiffs may be justly entitled.
Dated: July 20, 2004

LAW OFFICES OF ELLIS RUBIN AND ROBERT I. BARRAR Attorneys for Plaintiffs 4141 Northeast 2nd Avenue Suite 203A Miami, Florida 33137 (305) 576-5600 (305) 576-3292 (telefax)
ZJ.~.
ELLIS S. RUBIN, ESQ. FL. BAR. NO.: 069289 For the firm

-AND-

GUY BENNET RUBIN, ESQ. Florida Bar No.: 691305 Rubin & Rubin Post Office Box 395 Stuart, Florida 34995 Tel.: (772) 283-2004 Fax: (772) 283-2009

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 Case: 8:04-cv-1680 As of: 09/27/2012 05:07 PM EDT 1 of 5
U.S. District Court Middle District of Florida (Tampa) CIVIL DOCKET FOR CASE #: 8:04−cv−01680−JSM−TBM

CLOSED

Wilson et al v. Ake et al Assigned to: Judge James S. Moody, Jr Referred to: Magistrate Judge Thomas B. McCoun III Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 07/20/2004 Date Terminated: 03/08/2005 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: U.S. Government Defendant

Nancy Wilson Rev.

represented by Ellis Stuart Rubin Rubin &Rubin Suite 203A 4141 NE 2nd Ave Miami, FL 33137−3527 305/576−5600 Fax: 305/576−3292 Email: EllisRubin@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Guy Bennett Rubin Rubin &Rubin PO Box 395 Stuart, FL 34995 772/283−2004 Fax: 772−283−2009 Email: grubin@rubinandrubin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert I. Barrar , Jr. Law Offices of Ellis Rubin &Robert I. Barrar Suite 311 6619 S Dixie Hwy Miami, FL 33143 305/576−5600 Fax: 305/576−3292 Email: rbarrar@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Dr. Paula Schoenwether

represented by Ellis Stuart Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Guy Bennett Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert I. Barrar , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:04-cv-1680 As of: 09/27/2012 05:07 PM EDT 2 of 5

V. Defendant Richard L. Ake in his official capacity as Clerk of the Circuit and County Court, Hillsborough County, Florida
Defendant John Ashcroft in his official capacity as Attorney General of the United States and head of the Department of Justice of the United States TERMINATED: 01/19/2005

represented by David Jay Glantz Office of the Attorney General Suite 1200 110 SE 6th St Ft Lauderdale, FL 33301 954/712−4608 Fax: 954−712−4708 Email: david_glantz@oag.state.fl.us ATTORNEY TO BE NOTICED
represented by W. Scott Simpson U.S. Department of Justice 20 Massachusetts Ave. N.W., Room 7210 P. O. Box 883 Washington, DC 20044 202/514−3495 Fax: 202/616−8470 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
Cody Taylor TERMINATED: 08/12/2004

represented by Erik W. Stanley Alliance Defending Freedom 15192 Rosewood Dr Leawood, KS 66224 913/685−8000 Fax: 913/685−8001 Email: estanley@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Date Filed 07/20/2004 07/20/2004 07/20/2004 07/20/2004 07/21/2004
07/21/2004

# Docket Text
1 COMPLAINT against Richard L. Ake, John Ashcroft ( Filing fee $ 150 receipt number T028316) filed by Paula Schoenwether, Nancy Wilson. (Attachments: # 1 Exhibit)(eec ) (Entered: 07/21/2004)
2 Summons issued as to John Ashcroft. Consent(s) issued. (Attachments: # 1 U.S. Attorney summons)(eec ) (Entered: 07/21/2004)
3 Summons issued as to Richard L. Ake. Consent(s) issued. (Attachments: # 1 State Attorney summons)(eec ) (Entered: 07/21/2004)
4 NOTICE of existence of constitution question by Paula Schoenwether, Nancy Wilson (eec ) (Entered: 07/21/2004)
5 MOTION to intervene by Cody Taylor. (Attachments: # 1 Affidavit Affidavit of Chris Weiss# 2 Affidavit Affidavit of Cody Taylor# 3 Affidavit Affidavit of Teresa Knox# 4 Affidavit Affidavit of Charles Aleshire# 5 Affidavit Affidavit of Susan Aleshire# 6 Affidavit Affidavit of Hector Anduiza# 7 Affidavit Affidavit of Omar Vazquez# 8 Affidavit Affidavit of Henry Ketzle# 9 Affidavit Affidavit of Charles Birch)(Stanley, Erik) (Entered: 07/21/2004)
6 MOTION to intervene Memorandum in Support by Cody Taylor. (Stanley, Erik) "Wrong event, counsel notified to refile" Modified on 8/16/2004 (eec ). (Entered: 07/21/2004)

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07/22/2004 07/22/2004 07/22/2004 08/03/2004 08/03/2004 08/04/2004 08/10/2004 08/10/2004 08/12/2004 08/12/2004 08/18/2004 08/19/2004
08/23/2004
08/23/2004 08/23/2004 08/23/2004
08/25/2004 08/26/2004 08/30/2004
09/01/2004 09/09/2004
09/10/2004

7 ORDER to strike document filed for using the wrong event code. Signed by Judge James S. Moody Jr. on 7/22/2004. (smb) (Entered: 07/22/2004)
8 NOTICE of designation under Local Rule 3.05 − track 2 on 7/22/2004. (smb) (Entered: 07/22/2004)
9 MEMORANDUM in support re 5 Motion to intervene, filed by Cody Taylor. (Staver, Mathew) (Entered: 07/22/2004)
10 NOTICE of Appearance by David Jay Glantz on behalf of Richard L. Ake (Glantz, David) (Entered: 08/03/2004)
11 NOTICE by Richard L. Ake of Similar Action (Glantz, David) (Entered: 08/03/2004)
12 ANSWER to complaint by Richard L. Ake.(Glantz, David) (Entered: 08/04/2004)
13 Amended ANSWER to complaint by Richard L. Ake.(Glantz, David) (Entered: 08/10/2004)
14 REPLY to affirmative defenses by Nancy Wilson. (Rubin, Ellis) (Entered: 08/10/2004)
15 ORDER denying 5 Motion to intervene. Signed by Judge James S. Moody Jr. on 8/12/2004. (len) (Entered: 08/12/2004)
16 REPLY to affirmative defenses by Nancy Wilson. (Rubin, Ellis) (Entered: 08/12/2004)
17 NOTICE of Appearance by W. Scott Simpson on behalf of John Ashcroft (eec ) (Entered: 08/18/2004)
18 NOTICE OF APPEAL as to 15 Order on motion to intervene by Cody Taylor. Filing fee $ 255. (Attachments: # 1)(Staver, Mathew) Modified on 8/20/2004 (crs, ).(Filed under incorrect code. Counsel notified, Will refile) (Entered: 08/19/2004)
19 NOTICE OF INTERLOCUTORY APPEAL as to 15 Order on motion to intervene by Cody Taylor. Filing fee $ 255. (Attachments: # 1)(Staver, Mathew) (Entered: 08/23/2004)
20 RETURN of service executed on July 28, 2004 by Nancy Wilson as to Richard L. Ake. (Rubin, Ellis) (Entered: 08/23/2004)
21 RETURN of service executed on July 28, 2004 by Nancy Wilson as to John Ashcroft. (Rubin, Ellis) (Entered: 08/23/2004)
22 TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, re: 19 Notice of interlocutory appeal. Transcript information form sent. (crs ) (Entered: 08/23/2004)
24 USCA appeal fees received $ 255.00 receipt number T028912 re: 19 Notice of interlocutory appeal filed by Cody Taylor (crs ) (Entered: 08/26/2004)
23 MOTION to strike demand for attorney fees by Richard L. Ake. (Glantz, David) (Entered: 08/26/2004)
25 NOTICE of pendency of other actions re 1.04 (c) order of compliance to Local Rule by Nancy Wilson Related case(s): yes (Rubin, Ellis) "No Signature, Counsel notified−to refile" Modified on 8/31/2004 (eec ). (Entered: 08/30/2004)
27 NOTICE of pendency of other actions re 1.04 (c) order of compliance to Local Rule by Nancy Wilson Related case(s): yes (Rubin, Ellis) (Entered: 09/01/2004)
28 TRANSCRIPT information form filed by Cody Taylor re: 19 Notice of interlocutory appeal. USCA number: 04−14362−F. (No transcripts ordered) (crs ) (Entered: 09/09/2004)
29 RESPONSE Plaintiffs' Answer to Defendant Ake's Request for Admissions by Nancy Wilson. (Rubin, Ellis) (Entered: 09/10/2004)

Case: 8:04-cv-1680 As of: 09/27/2012 05:07 PM EDT 4 of 5

09/22/2004 09/27/2004 09/27/2004 09/28/2004 09/28/2004 09/28/2004 09/30/2004 09/30/2004
09/30/2004
09/30/2004 10/12/2004 10/13/2004 10/13/2004 10/15/2004 10/18/2004
11/08/2004 11/16/2004
11/16/2004 11/17/2004

30 ORDER TO SHOW CAUSE for Plaintiffs' failure to respond to Defendant's Motion to Strike (Dkt. #23). Show Cause Response due by 10/4/2004. Signed by Judge James S. Moody Jr. on 9/22/2004. (len) (Entered: 09/22/2004)
31 MOTION to dismiss Complaint by John Ashcroft. (Simpson, W.) (Entered: 09/27/2004)
32 MOTION for leave to file excess pages by John Ashcroft. (Attachments: # 1 Memorandum in Support of Federal Defendant's Motion to Dismiss)(Simpson, W.) (Entered: 09/27/2004)
33 MOTION to withdraw 23 MOTION to strike demand for attorney fees by Richard L. Ake. (Glantz, David) (Entered: 09/28/2004)
34 NOTICE by Nancy Wilson Notice of Filing Response to Order to Show Cause (Rubin, Ellis) (Entered: 09/28/2004)
35 RESPONSE Response to Order to Show Cause by Nancy Wilson. (Rubin, Ellis) (Entered: 09/28/2004)
36 ENDORSED ORDER granting 33 Motion to withdraw motion to strike demand for attorney's fees. Signed by Judge James S. Moody Jr. on 9/30/2004.(nmb) (Entered: 09/30/2004)
37 ENDORSED ORDER withdrawing 23 Motion to strike. The Court has granted Defendant Richard L. Ake's motion to withdraw motion to strike demand for attorney's fees. Signed by Judge James S. Moody Jr. on 9/30/2004.(nmb) (Entered: 09/30/2004)
38 ENDORSED ORDER granting 32 Motion for Leave to File Excess Pages. Defendant shall file a signed copy of its memorandum within five (5) days of the date of this Order. Signed by Judge James S. Moody Jr. on 9/30/2004.(nmb) (Entered: 09/30/2004)
39 MEMORANDUM in support re 31 Motion to dismiss filed by John Ashcroft. (Simpson, W.) (Entered: 09/30/2004)
40 CASE MANAGEMENT REPORT. (Glantz, David) (Entered: 10/12/2004)
41 CASE MANAGEMENT REPORT. (Glantz, David) (Entered: 10/13/2004)
42 NOTICE by Richard L. Ake re 41 Case Management Report Consent to Exercise of Jurisdiction (Glantz, David) (Entered: 10/13/2004)
43 ORDER approving Consent to Exercise of Jurisdiction by Magistrate for specified motions. Signed by Judge James S. Moody Jr. on 10/15/2004. (len) (Entered: 10/15/2004)
44 CASE MANAGEMENT AND SCHEDULING ORDER: Fact Discovery due by 1/14/2005. Dispositive Motions due by 4/14/2005. Pretrial Conference set for 9/8/2005 09:00 AM in Courtroom 13 A before Judge James S. Moody Jr. Bench Trial set for trial month commencing 10/3/2005. (See Order for additional deadlines.) Signed by Judge James S. Moody Jr. on 10/18/2004. (len) (Entered: 10/18/2004)
45 ORDER TO SHOW CAUSE for Plaintiffs' failure to respond to Motion to Dismiss 31 . Show Cause Response due on or before 11/19/2004. Signed by Judge James S. Moody Jr. on 11/8/2004. (len) (Entered: 11/08/2004)
46 MEMORANDUM in opposition to the United States Attorney General's Motion to Dismiss filed by Nancy Wilson. (Rubin, Ellis) "NO LINK TO MOTION, COUNSEL NOTIFIED AND WILL REFILE" Modified on 11/17/2004 (eec ). (Entered: 11/16/2004)
47 RESPONSE to Court's Sua Sponte Order to Show Cause of November 8, 2004 by Nancy Wilson. (Rubin, Ellis) "NO LINK TO ORDER, COUNSEL NOTIFIED AND WILL REFILE" Modified on 11/17/2004 (eec ). (Entered: 11/16/2004)
48 MEMORANDUM in opposition re 31 Motion to dismiss filed by Nancy Wilson. (Rubin, Ellis) (Entered: 11/17/2004)

Case: 8:04-cv-1680 As of: 09/27/2012 05:07 PM EDT 5 of 5

11/17/2004 11/18/2004 11/18/2004
11/22/2004 12/02/2004 12/17/2004 01/04/2005 01/04/2005 01/12/2005 01/12/2005 01/13/2005 01/19/2005
01/20/2005 01/20/2005 02/25/2005
03/07/2005 03/08/2005

49 RESPONSE re 45 Order to show cause by Nancy Wilson. (Rubin, Ellis) (Entered: 11/17/2004)
50 MOTION for leave to file reply memorandum in support of motion to dismiss by John Ashcroft. (Simpson, W.) (Entered: 11/18/2004)
Set/Reset Hearings: Bench Trial set for 10/3/2005 09:00 AM in Courtroom 13 A before Judge James S. Moody Jr. Final Pretrial Conference set for 9/8/2005 09:00 AM in Courtroom 13 A before Judge James S. Moody Jr. (eec ) (Entered: 11/18/2004)
51 MOTION to consolidate cases by Richard L. Ake. (Glantz, David) (Entered: 11/22/2004)
52 RESPONSE to motion re 51 MOTION to consolidate cases Statement of Non−Opposition filed by John Ashcroft. (Simpson, W.) (Entered: 12/02/2004)
53 RESPONSE to motion re 51 MOTION to consolidate cases Plaintiffs' Statement of Non−Opposition filed by Nancy Wilson. (Rubin, Ellis) (Entered: 12/17/2004)
54 CERTIFICATE of readiness sent to USCA re: 19 Notice of interlocutory appeal. USCA number: 04−14362−FF (crs ) (Entered: 01/04/2005)
55 RECORD on appeal sent to USCA re: 19 Notice of interlocutory appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 2. USCA number 04−14362−FF (crs ) (Entered: 01/04/2005)
57 ACKNOWLEDGMENT by USCA of receiving certificate of readiness on 1/7/05 re: 19 Notice of interlocutory appeal. USCA number: 04−14362−FF. (crs) (Entered: 01/13/2005)
58 ACKNOWLEDGMENT by USCA of receiving record on appeal on 1/7/05 re: 19 Notice of interlocutory appeal. USCA number: 04−14362−FF. (crs ) (Entered: 01/13/2005)
56 ENDORSED ORDER denying 51 Motion to Consolidate. Signed by Judge James S. Moody Jr. on 1/13/2005. (len) (Entered: 01/13/2005)
59 ORDER: The U. S. Attorney General John Ashcroft's Motion to Dismiss 31 is GRANTED. Plaintiffs' claim against Defendant Ashcroft is dismissed and the Clerk is directed to terminate him as a party. Signed by Judge James S. Moody Jr. on 1/19/2005. (len) (Entered: 01/19/2005)
60 ENDORSED ORDER denying 50 U.S. Attorney General's Motion for Leave to File Reply Memo. Signed by Judge James S. Moody Jr. on 1/20/2005. (len) (Entered: 01/20/2005)
61 MOTION for summary judgment by Richard L. Ake. (Attachments: # 1 Appendix Notice of filing exhibit to motion for summry judgment# 2 Exhibit Exhibit to motion for summay judgment)(Glantz, David) (Entered: 01/20/2005)
62 ORDER of USCA as to 19 Notice of interlocutory appeal filed by Cody Taylor, that the joint motion to dismiss this appeal with prejudice, with parties bearing their own costs, is granted. Issued as the mandate: 2/23/2005. USCA # 04−14362−F (crs ) (Entered: 02/25/2005)
64 NOTICE of Voluntary Dismissal by Nancy Wilson (Rubin, Ellis) (Entered: 03/07/2005)
65 ORDER dismissing case. All pending motions are denied as moot. Clerk is directed to close the file. Signed by Judge James S. Moody Jr. on 3/8/2005. (len) (Entered: 03/08/2005)


Florida Court found no fundamental right to same-sex marriage in 2005. (M.D. Fla.) 