New Same Sex Marriage Laws in Florida 2014

* January 5th, 2015 – The Federal Court clarified its ruling that Florida’s ban on same sex marriage. The judge declared the ruling applies to all Florida counties. Congratulations to the LGBT community !

* December 19th, 2014 – well … it looks like this is really going to happen. The US Supreme Court just declined to extend the stay on the already existing Federal Court Order invalidating the Florida ban on same sex marriage. We are waiting on January 5th, 2015.

* December 17th, 2014- Judge Cohen of Broward County decided to finalize a divorce for Heather Brassner. This would be the first same sex divorce granted in the State of Florida.

*November 6th, 2014 – Coming up, on January 5th, 2015, Judge Robert Hinkle will most likely lift the stay on his prior ruling that Florida’a same sex marriage ban is unconstitutional. The lifting of the stay will have state-wide impact even though the ruling only controls in the counties under the jurisdiction of Judge Hinkle’s court – the Northern District of Florida.

*October 6th, 2014 – The US Supreme Court has declined to review same sex marriage ban laws on the Federal level.  The Court specifically decided not to review appellate decisions from Wisconsin, Indiana, Utah, Oklahoma and Virginia previously striking down same sex marriage bans. Those appeals also affected certain adjacent states. The legal effect of Supreme Court decision is to allow the appellate court decisions to stand – now legalizing gay marriage in a handful of states.

Where does this leave us in Florida?  

As described below, Federal Judge Robert L. Hinkle in Tallahassee entered an order on August 21st declaring the Florida ban to be unconstitutional. But Judge Hinkle then entered a stay of his ruling pending further review by the Supreme Court. The latest news may convince Judge Hinkle to rescind his stay which would effectively legalize same sex marriage in Florida.

There are also multiple cases in Florida state courts winding their way though the appeals process and eventually headed for the Florida Supreme Court.

In any case: it appears that legalized same sex marriage is very close to becoming a reality in Florida.

* September 5th, 2014  – Attorney General Bondi has chosen not to file an appeal of the July 31st, 2014 Broward County court decision invalidating the state same-sex marriage ban. The original judgment was stayed to allow the state a chance to appeal. There is a strict 30 day deadline to appeal trial court judgments. That has now timed out. The Broward Court’s ruling now takes effect. The Broward County Clerk of Court is now conducting a legal review on whether they will begin to issue marriage licenses to same-sex couples. What is clear now is that the court can grant a divorce to Heather Brassner and Megan Lade – the first of its type in Florida.

Technically the invalidated law on same-sex marriage is only effective in Broward, and a handful of other nearby counties. But the effect of this development is to rapidly push forward the developing situation on the same sex marriage ban in Florida.  This is a huge victory for the Gay and Lesbian community in Florida.

* August 27th, 2014 – The 2nd District Court of Appeals (Lakeland) has requested the Florida Supreme Court review the Hillsborough County case of Mariama Monique Changamire Shaw and Keiba Lynn Shaw.  The lesbian couple previously filed for divorce in Hillsborough County Circuit Court and was refused a divorce because Florida did not recognize their same-sex marriage. The Florida Supreme Court has the option of refusing to review the case. If the court accepts the case their decision has the potential to overturn the statewide ban on same sex marriage.

* August 21st, 2014 – A federal judge in Tallahassee declared the Florida ban on same-sex marriage to be unconstitutional. The judge, U.S. District Judge Robert L. Hinkle also issued a stay of the ruling. That means any effect of the court ruling will be delayed until a higher court addresses the issue.

” August 5th, 2014 – Palm Beach Judge Diana Lewis entered an order allowing gay spouse Jason Simpson to be a personal representative in the estate of his husband, Frank Bangor – despite the fact that Florida’s constitutional ban would not normally allow this type of recognition.

* July 31st, 2014 – Broward County Circuit Judge Dale Cohen has a request to declare the ban on same-sex marriage unconstitutional in Florida for the purpose of granting a divorce to Petitioner Heather Brassner.  That situation almost parallels a case in Hillsborough County (see below) where the judge denied the Petition. August 4th, 2014 update – the judge ruled the ban is unconstitutional and that the marriage should be dissolved. It is still up in the air whether the Attorney General will appeal this ruling.

* July 26th, 2014 – A second judge in Florida entered a ruling that the ban on same-sex marriage in Florida is unconstitutional. Circuit Judge Judge Sarah Zabel in Miami-Dade County entered a ruling in a lawsuit filed by six same-sex couples. The judge immediately entered a “stay” with suspends the effect of the ruling. The reason for the “stay” is the fact that the attorney general is currently appealing the Monroe County ruling.

* July 24th, 2014 – The decision in Monroe County to allow same-sex marriage is currently on hold until the issue can be examined by appellate courts. We will most likely see the case proceed to the Florida Supreme Court for review. The hold on the application of the Monroe County decision will probably stay in place until the Florida Supreme Court enters a decision. If the the case does go to the Florida Supreme Court, any resulting decision will govern the courts in every Florida County.

The Current State of Same-Sex Marriage Laws in Florida

On Thursday, July 17, a circuit court judge overturned the state’s constitutional and statutory ban on same-sex marriage. In the case of Hunstman v. Heavilin, a same-sex couple living in Florida’s Monroe County applied for a marriage license. The couple’s application was denied by the county clerk, however, because of the Florida Marriage Protection Act (FMPA) and Florida law. The FMPA was approved by Florida voters in 2008, was codified in the Florida Constitution, Article I, Section 27, and stated as follows: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.” The particular Florida statute in question – 741.04(1) – prohibited same-sex couples from being issued a marriage license.

In concluding his opinion, Judge Garcia noted “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.” Although Judge Garcia’s decision directed the Clerk of Monroe County to begin issuing marriage licenses to same-sex couples beginning on Tuesday, July 22, the Florida Attorney General’s Office appealed the decision, meaning that Judge Garcia’s order is on hold until the case is resolved by the appellate courts.

The Heavilin decision has been regarded by some as the “beginning of the end” of Florida’s ban on same-sex marriage. If this comes to pass, Florida would join nineteen other states and the District of Columbia in having legalized same-sex marriage. Such an occurrence would greatly expand the rights of same-sex couples in Florida, who presently are only able to adopt children. If Heavilin is successful on appeal, this would mean that same-sex couples in Florida would be able to be legally married and could not be denied a marriage license on the basis of their sexual orientation. Same-sex couples married couples would be entitled to all of the legal rights and responsibilities that married heterosexual couples presently enjoy.

What follows is a brief history of same-sex discrimination and rights in the State of Florida, followed by an analysis of the issues and decision in the Heavilin case itself. Some final thoughts on the implication and significance of the Heavilin decision and a look at the road ahead for supporters of same-sex couples’ right to marry.

History of Same-Sex Marriage Laws in Florida

To more fully understand and appreciate the significance of Judge Garcia’s decision, one must travel back 1977. At that time, singer Anita Bryant and others led a successful campaign that resulted in the repeal of a local ordinance that banned discrimination against gays and lesbians and had plans to achieve similar results in several other cities. That same year, the Florida Legislature passed bills prohibiting same-sex marriage was well as prohibiting same-sex couples from adopting children.

Twenty years later, in 1997, Florida’s legislature again took action limiting the rights of gays and lesbians by adopting its own version of the federal Defense of Marriage Act (DOMA). The law not only prohibited same-sex marriage but also denied legal recognition of same-sex marriages validly performed in other states. In other words, not only were same-sex couples denied the right to marry in Florida, but those couples that were legally considered married in other states would not enjoy that same legal recognition if they moved to Florida.

In 2004, there were various attempts at securing the right of same-sex couples to marry following same-sex weddings in San Francisco, California. In November 2008, however, Florida voters passed Florida Amendment 2 by a margin of 62 percent in favor to 38 percent opposed. This amendment (referred to as the Florida Marriage Protection Act, or FMPA) was codified in Article I, Section 27 of the Florida Constitution and read: “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Interestingly enough, also in 2008, a state court judge threw out the 1977 ban prohibiting same-sex couples from adopting children, finding there was “no rational basis” for upholding the ban. When the State declined to appeal the ruling, same-sex couples were thereafter permitted to adopt children in Florida.

Huntsman v. Heavilin – The Facts and Issues

In Heavilin, Key West residents Aaron Huntsman and his partner of eleven years applied to the Clerk of the Court of Monroe County for a marriage license. Referring primarily to Florida Statute 741.04(1), which forbids the issuance of a marriage license unless one party to the marriage is male and the other is female, the clerk refused to issue the couple a marriage license. Following the denial, Huntsman filed a lawsuit in Monroe County, asking the court to find that the FMPA as well as Florida Statutes 741.04(1) and 741.212(1) (which holds that same-sex marriages from other states are not recognized by the State of Florida) were unconstitutional and violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

The State of Florida argued that Florida courts did not have the ability to hear and decide a constitutional challenge to a state’s definition of marriage because, according to a U.S. Supreme Court decision from the 1970’s, the regulation of marriage was strictly within the powers of the individual states. In other words, according to the State, that U.S. Supreme Court case from the 1970’s held that the legislature of each state had the power to regulate marriage within that particular state. Until that case (Baker v. Nelson, 409 U.S. 810 (1972)) was overruled, the State continued, no other court could hear a constitutional challenge to a state’s definition of marriage.

The state also argued that, even if a state court could review whether a state’s definition or regulation of marriage was constitutional, the court would have to apply a “rational basis standard” and find that the marriage definition or regulation was constitutional if there was “any reasonable conceivable state of facts” that could provide a rational basis for the definition or regulation. The State argued, in essence, that Florida’s definition and regulation of marriage should be found constitutional – even if they discriminated against same-sex couples – so long as there was a reasonable and conceivable set of facts that supported the definition and regulations.

Huntsman v. Heavilin – The Decision

Judge Garcia began his decision by holding, like other state and federal courts have previously held, that the Baker decision did not prevent the court from examining whether the FMPA and the two Florida statutes were constitutional. The court then looked at the Due Process Clause of the Fourteenth Amendment, which guarantees all citizens certain fundamental rights and liberty from governmental interference. The right to marry has long been recognized as a fundamental right protected by the Due Process Clause. Therefore, the court held, the FMPA and Florida Statute 741.04(1) violated the Due Process Clause in that they denied gay and lesbian individuals the fundamental right to marry.

Likewise, the Florida statutes and FMPA were found to violate the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause prohibits states from denying persons the equal protection of the law. In other words, states cannot treat one class or group of citizens differently under the law than another group, except in certain circumstances. Although the State of Florida argued that there was a “rational basis” – a legitimate government purpose – for the law, the court disagreed. Proponents of the FMPA and the Florida statutes argued that these legislative enactments accomplished three legitimate government purposes: (1) memorializing millennia of history and tradition; (2) encouraging heterosexual couples to procreate; and (3) encouraging a better environment for the rearing of children. The court found no evidence to support any of these alleged purposes, but instead found that denying same-sex couples the right to marry “limit(s) the resources, protections and benefits to children of same-sex parents.” Thus, the court concluded, there was no rational basis to support the FMPA nor Florida Statute 741.04(1) and both violated the Equal Protection Clause of the Fourteenth Amendment.

However, the court denied Huntsman’s argument that Florida Statute 741.212(1) (denying legal recognition of same-sex marriages performed in other states) was unconstitutional. Since Huntsman and his partner were not married by any other state and thus were not harmed by this particular statute. Therefore, they lacked “standing” to challenge the constitutionality of this particular statute.

In concluding its reasoning, the court acknowledged that the majority of voters in Florida oppose same-sex marriage (as evidenced by its passage of the FMPA), but likened protection of the right of same-sex couples to marry to the protection of other “unpopular” rights. For instance, the court said, the NRA’s activities designed to preserve the right of citizens to bear arms were worthy of protection when Chicago attempted to ban handguns within the city’s limits. Similarly, Nazi supremacists had a right to march in the predominately Jewish neighborhood of Skokie, Illinois, even if such an activity was unpopular or even offensive. Finally, the court pointed to the right of individuals to marry members of a different race (which was once unpopular) or of black children to go to all-white schools as examples of instances in which the rights of a minority of individuals were deserving of protection regardless of the popularity of the exercise of those rights. “[I]t 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,” wrote Judge Garcia.

The Implications of Huntsman v. Heavilin

The Heavilin case is more of a symbolic victory, at least in the short term. In concluding his decision, Judge Garcia directed that the Clerk of Monroe County begin issuing marriage licenses to same-sex couples in Monroe County beginning on July 22, 2014. Because this was a state case (not a federal case), Judge Garcia’s order applied only to Monroe County. It would not be considered binding authority for any other state or federal court, or state or federal official, other than those state officials in Monroe County.

Not only this, but the Florida Attorney General’s Office filed a notice indicating its intent to appeal Judge Garcia’s decision, Because of this, Judge Garcia “stayed” his order, effectively preventing it from being enforced until the appeal is decided. Despite a request by Huntsman to “lift” the stay, Judge Garcia declined to do so.

The Road Ahead for Same-Sex Couples in Florida

The Heavilin case is but one of several cases currently pending in Florida courts dealing with the right of same-sex couples to wed. One case is pending in Tallahassee, while six same-sex couples have brought suit in Miami-Dade County seeking a court order directing the Clerk of Miami-Dade County to issue marriage licenses in that county. Not only this, but several federal lawsuits are also pending in Florida. Although Heavilin has not yet resulted in marriage licenses being issued to same-sex couples in Florida, a number of observers believe it is only a matter of time before same-sex marriages are performed and legally recognized in Florida.

[Another case, filed in Hillsborough County by a same-sex couple legally married in Massachusetts, sought to have Florida Statute 741.212(1) declared unconstitutional and have their marriage recognized by Florida so that they could be granted a divorce. However, after hearing arguments the judge in that case dismissed the petition for divorce. Thus, no court in Florida has yet found Florida Statute 741.212(1) to be unconstitutional.]

Both proponents and opponents of Florida’s FMPA and statutes recognize that this precise issue will most likely need to be decided by the U.S. Supreme Court before same-sex couples in Florida are able to legally marry. Nevertheless, the Heavilin decision certainly provides encouragement to same-sex marriage supporters to continue the fight for the right to marry in Florida.