Florida’s New Normal: Marriage Equality

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Last night, as the clock struck midnight, time ran out on Florida’s shameful experiment on same-sex marriage bans. As soon as the ban was lifted, same-sex couples jumped on the opportunity to get married. At the Broward County Courthouse, dozens of couples gathered to participate in a mass wedding. Hundreds came out to engage in a rather simple ceremony, made extraordinary because of the struggle it took to be allowed to stand at the altar in the first place.

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Some people had been waiting years for the right to marry the partner of their choosing. Others have been waiting decades. One couple I spoke with said they have been waiting for this day for 23 years. Another couple had been waiting 25.

The couples at the mass wedding, fittingly, spanned every color of the rainbow. Young and old couples were married. Couples of nearly every ethnicity and religion appeared to be represented. Some couples dressed up; others appeared completely casual. Some brought their children. Some were nervous. Some felt the whole scene to be surreal. Some were simply tired as the night wore on.

Couples shared their stories and their struggles. Speakers talked about the long journey to this historic milestone. There was cake and champagne for the newlyweds. There was love all around. Among this atmosphere, it is hard to imagine a different outcome. The legal battle to marriage equality in Florida had been particularly difficult, as Governor Rick Scott and Attorney General Pam Bondi have fought it every step of the way. To try to defend the indefensible, the State set out disingenuous, wholly discredited arguments that had been laughed out of nearly every court that had heard them before. Stubbornly, Florida continued to argue about states’ rights and “responsible procreation.”

At the Broward Courthouse, same-sex couples take their turn exchanging vows shortly after the ban is lifted. (Photo Credit: Brian M. Stewart)

At the Broward Courthouse, same-sex couples take their turn exchanging vows shortly after the ban is lifted. (Photo Credit: Brian M. Stewart)

 

The Supreme Court, having previously denied certiorari in seven cases that held same-sex marriage bans unconstitutional, now may have no choice but to decide the issue once and for all. Although nearly every state and federal court that has heard the issue has stated in no uncertain terms that same-sex marriage bans are unconstitutional, the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) held that such bans are constitutional.1 [1.  DeBoer v. Snyder, Nos. 14-1341, 3057, 3463, 5291, 5297, 5818 (6th Cir. Nov. 6, 2014)]  The reasoning behind that decision was so specious that the dissent speculated the only reason the majority could come to that conclusion was to force Supreme Court review:

“Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.”2 [2. Id. at 55 (Daughtrey, J., dissenting).]

The legal arguments that proponents of these bans rely upon are utterly ridiculous, as pointed out perhaps most clearly by the Honorable Judge Posner on the Seventh Circuit.3 [3.  See also Judge Posner’s opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014)]. Here in Florida, the results of the lawsuits have been easily predictable and the opinions have been just as forceful:

Judge Garcia, Huntsman v. Heavilin, No. 2014-CA-305-K (Fla. 16th Cir. July 17, 2014)4 [4. All statements in bullet points are direct quotes from the opinions.]

  •  The Supreme Court in Lawrence explained that every generation defines its own freedom and that our present laws may be judged by future generations as oppressive and obviously unconstitutional. The same way we now look at laws that forbade interracial marriages, or excluded homosexuals from entering the country, or kept women from voting, or kept black children from going to school with white children or that the U.S. imprisoned Japanese-Americans, on U.S. soil, in camps during WWII. When these laws were in effect, they were supported by society as being reflective of our traditions and morals at the time. Only when those not in power, challenged the constitutionality of those laws were they overturned by the courts regardless of the law’s popularity and years of tradition.5 [5. Id. at 7.]
  • This court is aware that the majority of voters oppose same-sex marriage, but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless, even at the cost of offending the majority. . . . All laws passed whether by the legislature or by popular support must pass the scrutiny of the United States Constitution, to do otherwise diminishes the Constitution to just a historical piece of paper.6 [6. Id. at 12.]

Judge Zabel, Pareto v. Ruvin, No. 14-1661 CA 24 (Fla. 11th Cir. July 25, 2014)

  • Treating homosexuals as inferiors, undeserving of the fundamental right to marry the individual that they love, deprives them of basic human dignity. Accordingly, it is held that [the same-sex marriage bans] violate the due process protections of the Fourteenth Amendment. . . . Furthermore, . . . they also violate the federal constitutional guarantee of equal protection.7 [7. Id. at 26.]
  • As case after case has come out, unified in their well-reasoned constitutional condemnation of the deprivation of one class of person’s right to marry, the answer to the question of whether it is constitutionally permissible to deprive same-sex couples of the right to marry has become increasingly obvious: Of course it is not. Preventing couples from marrying solely on the basis of their sexual orientation serves no government interest. It serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and treat them as second-class citizens, and to deem them unworthy of participation in one of the fundamental institutions in our society.8 [8. Id.at 34.]

Judge Hinkle, Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014)

  • When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held [as arguments supporting the ban on interracial marriage], will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held.9 [9. Id. at 1281.]
  • The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down. Liberty, tolerance, and respect are not zero-sum concepts. Those who enter opposite-sex marriages are harmed not at all when others . . . are given the liberty to choose their own life partners and are shown the respect that comes with formal marriage. Tolerating views with which one disagrees is a hallmark of civilized society.10 [10. Id. at 1291.]

Judge Cohen, Brassner v. Lade, No. 13-012058 (Fla. 17th Cir. Dec. 8, 2014)

  • In reviewing the previous arguments that have been espoused by the State in other similar cases, . . . even under a rational basis review the same-sex marriage ban and refusal to recognize out-of-state-same-sex marriage violates equal protection as it does not rationally further any legitimate state interest. . . . Instead the ban discriminates against same-sex couples by questioning their skill in parenting while the law does not question opposite sex couples [sic] abilities to parent.11 [11. Id. at 12-13.]
  • Our country has evolved each generation, and the generation before is often baffled at the changes. Setting aside personal biases, feelings, beliefs and anxieties, and embracing change is often difficult but essential to ensuring that all people are treated fairly under our Constitution. Our country has always strived to recognize the rights of all people. Equality is the cornerstone of our nation. . . . To discriminate based on sexual orientation, to deny families equality, to stigmatize children and spouses, to hold some couples less worthy of legal benefits than others based on their sexual orientation, to deny individuals tax credits, marital property rights, the ability to dissolve their unions from other jurisdictions is against all that this country holds dear, as it denies equal citizenship.12 [12. Id. at 15-16.]

It is a new day in Florida. For couples who have fought so hard to have their relationships validated under the law, the question now remains: could the Supreme Court throw a wrench into the entire system? Could the high court ignore the overwhelming case law and dozens of poignant, impassioned opinions by state and federal judges? Is it possible that the Court will agree with the Sixth Circuit that states should be allowed to determine this issue for themselves? Can certain justices set aside their biases13 [13. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2697 (2013) (Scalia, J., dissenting); Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting).] to decide this issue based on the only reasonable interpretation of the Constitution?

One can only hope that the Supreme Court will soon validate same-sex marriage and strike down all state prohibitions on the practice. For now, marriage equality is the law in Florida. It is hard to imagine all of it being different at some point in the future. The courts have spoken. The people have spoken. And now Florida’s same-sex couples have spoken. They have finally been allowed to say, “I do.”

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Brian M. Stewart is the owner of Legal Mechanics, LLC, a writing and editing company specializing in works of legal scholarship. He has previously been published in the UC Davis Business Law Journal, the Florida Historical Quarterly, The Green Bag, and the University of Miami Law Review (twice).

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