The second in a series of posts detailing the legal implications of Florida's proposed marriage amendment, Amendment 2.
Amendment 2 essentially has two parts: one that limits marriage to opposite sex couples, and a second that prohibits the recognition of any "legal union that is treated as marriage or the substantial equivalent thereof." Before I do a series of posts about the amendment's "substantial equivalent" language, I wanted to address one of the main claims made by its proponents regarding the need to define marriage in the Florida Constitution.
The proponents of Amendment 2 repeatedly argue that a constitutional amendment limiting marriage to opposite sex couples is needed to keep Florida courts from legalizing marriage for same sex couples. They point to what happened in Connecticut just last week (and in California last May), where the Connecticut Supreme Court held the ban on marriage for same sex couples violated the Connecticut Constitution. According to a recent statement from the proponents of Amendment 2, Connecticut's decision is "the latest reminder of why we need Amendment 2."
But is this claim really true? Are the lessons from this Connecticut decision (and the California and Massachusetts marriage decisions) really applicable to understanding Amendment 2? Florida law explicitly prohibits marriage for same sex couples, and it further prohibits the recognition of same sex marriages performed elsewhere. The question then becomes whether these laws violate the Florida Constitution. I am pretty confident in saying that these marriage laws are in no danger of being ruled unconstitutional by the Florida Supreme Court.
Florida and Connecticut Are Not Analogous
The main problem with trying to draw lessons from Connecticut's marriage opinion is that there is no legal support for the idea that Florida law is anywhere similar to Connecticut law, especially when it comes to those regulating LGBT individuals and their families. The same can be said of trying to draw any analogies with Massachusetts or California law.
The recent Connecticut and California marriage cases did not just happen overnight. In fact, these marriage opinions were based upon years of laws and court opinions that became increasingly more supportive of LGBT individuals and their families. These states, along with their courts, have a long history of being supportive of gay rights and same sex relationships. It is only because of this long history and full understanding of LGBT issues did these state supreme courts move toward marriage equality. In fact, California and Connecticut have implemented some of the most extensive laws protecting and recognizing same sex relationships and their families.
• Connecticut was the first state to pass a civil unions law voluntarily (Vermont was the first to offer civil unions, but only after the state supreme court required them to give equal rights to same sex couples).
• California implemented one of the first domestic partner laws, still one of the best in the country.
• California's legislature approved a bill recognizing same sex marriage before it was vetoed by the governor.
In direct contrast, the Florida legislature and courts have not been supportive of LGBT rights. The best you might be able to say about Florida law is that it is ambivalent about LGBT rights, but a more accurate description is that it is hostile. Dating back to Anita Bryant in the 1970s, Florida has a long history of being hostile towards gays and lesbians.
Florida Explicitly Bans Adoption by Gays and Lesbians.
The most obvious example of Florida's disdain for gays, lesbians, and their families is in its adoptions laws. Florida is the only state that statutorily bans gays and lesbians from adopting children under any circumstance. Recent attempts to change the adoption law have gone nowhere. Almost three years ago, I attended the only state senate committee hearing that has directly addressed this issue. I saw the children, including our own foster son, speak against this ban because it hurt them. The bill essentially was stopped by the senate president because he deemed it "too controversial," even though nobody spoke against it at the hearing.
The adoption ban has been upheld by state1 and federal2 courts. Although there are current attempts to have this ban overturned, it is a long way (if ever) from being ruled unconstitutional by the Florida Supreme Court, which is getting more socially conservative. After years of Jeb Bush appointees (which nobody will say were liberal on social issues), Florida's current governor, Charlie Crist, has appointed two new justices with conservative records on social issues. We ultimately do not know what the current justices will do with the adoption ban if it reaches them, but it clearly will be difficult to overturn in this environment.
One thing is pretty clear though. If the Florida Supreme Court holds the adoption ban to be constitutional, I don't see how it would turn around and make same sex marriage legal.
The reverse, however, is not true. New York is a perfect example of this, where the state's highest court extended adoption rights for a same sex co-parent while it later upheld the state's ban on same sex marriage. The reality is that most courts are more accepting of gays and lesbians adopting children but are not ready to make that leap to legalizing same sex marriage. Just look at the evidence: a number of state courts have explicitly ruled that gays and lesbians can adopt, while only three states allow same sex marriage.
Florida Law is Not Heading Toward Being LGBT-Friendly.
Other legislative attempts at LGBT-friendly laws in Florida have seen similar fates as the efforts to remove the adoption ban. The closest the legislature has come to anything gay-friendly recently is the passing of an anti-bullying ban for public school students. The problem, however, was the legislature refused to enumerate sexual orientation as a protected class. The best gay rights advocates have been able to do recently in this state is pass a broadly-worded anti-bullying measure that does not explicitly address sexual orientation! This is the climate that LGBT people face in this state, so it is hard to imagine the Florida Supreme Court legalizing marriage for same sex couples. Nobody can, therefore, credibly say Florida is anything like California, Connecticut, or Massachusetts.
These facts don't even take into account that nobody is currently making a credible challenge to our marriage laws in the courts. We all know how futile this would be. In fact, a few years ago, a Miami attorney filed lawsuits challenging Florida's marriage laws and the federal DOMA. After losing in federal court, the lawsuits were withdrawn. Many lawyers, including myself, cautioned that these lawsuits would only produce bad legal precedent that could later be used against the LGBT community.
Put simply, Florida's marriage laws are in no immediate "danger" of being overturned by the Florida Supreme Court, eliminating any need for Amendment 2.
Be sure to read the rest of my series discussing the legal issues surrounding Amendment 2:
- The Real Impact of Florida's Amendment 2
- Florida's Amendment 2: Florida Is No Connecticut!
- Florida's Amendment 2: What Does "Substantial Equivalent" To Marriage Mean?
- Florida's Amendment 2: The Lessons from Michigan
1 Dept. of Health and Rehabilitative Services v. Cox, 627 So.2d 1210 (DCA 2, 1993)
2 Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804 (11th Cir. 2004), rehearing en banc denied, 377 F.3d 1275, certiorari denied, 125 S.Ct. 869.