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Same-sex marriage in Florida

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Same-sex marriage in Florida
  Same-sex marriage in the process of being legal, but not yet in effect
  Judicial ruling against ban on same-sex marriage stayed pending appeal
Part of the LGBT rights series
Marriage legal

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
See also
Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ Recognition of a "declaration of family relationship" is available in 68 of Cambodia’s communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
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Florida does not recognize the validity of same-sex marriage, except that of a case involving a widower who was married in Delaware.[1] The state banned same-sex marriage by statute in 1977 and added a prohibition on the recognition of marriages from other jurisdictions in 1997. Voters approved an amendment that banned both same-sex marriage and civil unions on 2008.

A U.S. district court ruled Florida's same-sex marriage ban unconstitutional on August 21, 2014. The decision was stayed pending appeal with preliminary injunctions issued.

Four state courts have also found the state's denial of marriage rights to same-sex couples unconstitutional, but at least three of them stayed enforcement of their decisions, which would only impact Monroe County, Miami-Dade County, and Broward County pending appeal. The Broward County case wasn't appealed and the ruling is set to go into effect. Other lawsuits are pending in state court.

Statutory ban

In 1977, the state enacted legislation banning same-sex marriage.[2] State Senator Curtis Peterson, sponsor of the legislation, said it was designed to say "we are tired of you and wish you would go back in the closet."[3]

In 1997, the Florida Legislature overwhelmingly adopted its own Defense of Marriage Act, which states marriage is the "union between one man and one woman" and bars the state from recognizing same-sex marriages performed in other states. Governor Lawton Chiles said: "I believe that, by and large, most Floridians are tolerant and will one day come to view a broader range of domestic partnerships as an acceptable part of life. But, that is not the case today." The bill became law without his signature.[4]

Responses to San Francisco same-sex weddings, 2004

The San Francisco 2004 same-sex weddings prompted a flurry of similar attempts at same-sex marriage in Florida. On February 25, Attorney Ellis Rubin filed suit in Ft. Lauderdale's Broward County Court on behalf of 170 gays and lesbians who sought the right to marry. The suit, brought against Broward County Clerk Howard Forman was, according to Ft. Lauderdale's NBC news affiliate, "believed to be the first formal legal challenge to the state law specifying that marriage licenses be issued only to parties consisting of one male and one female."[5]

The city of Key West passed a symbolic resolution in support of same-sex marriage. Organizers of a new White Ribbon Campaign for equality launched an effort on March 16 at the Key West City Commission meeting to emphasize the discrepancy between simultaneously extolling freedom and banning gay marriages.[citation needed] On March 18, Tampa Mayor Pam Iorio signed an order, effective the following year, extending health benefits to domestic partners of city employees.[6] On March 18, eight same-sex couples applied for marriage licenses. A deputy clerk at the Orange County Courthouse denied them. Several then participated in a union ceremony sponsored by the First Unitarian Church of Orlando.[7] On March 22, gay and lesbian couples gathered in Gainesville at the Alachua County Courthouse and elsewhere around the state as they attempted to obtain marriage licenses and were turned away.[citation needed]

Constitutional amendment

On November 4, 2008, voters approved Florida Amendment 2, a constitutional amendment banning same-sex marriage and civil unions in the state. Passage required approval by 60% of the voters and 62% of voters did so.[8]

In 2013, Get Engaged and Equal Marriage Florida were formed, two organizations dedicated to overturning the constitutional amendment in the 2014 elections.[9][10]

Lawsuits

State court

Pareto v. Ruvin and Huntsman v. Heavilin are two state circuit court (i.e. trial-level) cases where Florida's ban on same-sex marriage has been found unconstitutional. Both decisions have been stayed and both are under appeal to the state Third District Court of Appeal, whose decision will be binding precedent for all Florida circuit and county courts.[11]

Pareto v. Ruvin

On January 21, 2014, six same-sex couples, some of whom have children or grandchildren, filed a lawsuit in the Eleventh Judicial Circuit Court of Florida in and for Miami-Dade County challenging the state's ban on same-sex marriage. The plaintiffs allege an Equal Protection violation of their rights under the Fourteenth Amendment to the U.S. Constitution. The suit was organized by Equality Florida. It named Miami-Dade County Clerk Harvey Ruvin as defendant because his office had refused to issue marriage licenses to the couples.[12]

The case, docketed as number 14-1661 CA 24, was assigned to Miami-Dade Circuit Judge Sarah Zabel.[13] Judge Zabel held a hearing in the case on July 2 and granted the plaintiffs' motion for summary judgment on July 25, 2014. Similar to the decision in Huntsman v. Heavilin (see below), the judge found that Florida's same-sex marriage ban and related statutes deprive couples due process and equal protection of the laws as guaranteed by the Fourteenth Amendment. In her opinion, Judge Zabel points out that while she "must follow the Florida Supreme Court’s direction and apply rational basis review to laws discriminating against homosexuality", she "respectfully suggest[s] that the question of what level of judicial scrutiny applies to sexual orientation discrimination be revisited on appeal." She goes on to note that even though heightened scrutiny is used for marriage as it is a fundamental right, most cases to date have shown that "[s]ame-sex marriage bans ... cannot withstand constitutional review regardless of the standard" (internal quotes omitted).

Judge Zabel stayed enforcement of her decision pending appeal.[14]

Huntsman v. Heavilin

Huntsman v. Heavilin is a similar lawsuit pending in the Sixteenth Judicial Circuit in and for Monroe County, which includes Key West. On April 3, 2014, the plaintiffs, Aaron Huntsman and William Lee Jones (represented by Bernadette Restivo) filed suit against the county clerk after they were denied a marriage license.[15] The case has been assigned to Judge Luis Garcia, the chief judge in that circuit and sitting in Plantation Key, and docketed as case CA-14-305-K. An initial hearing in the case was held on July 7, 2014.[16]

Circuit court ruling

On July 17, 2014, Judge Garcia issued a ruling in Huntsman in favor of the plaintiff same-sex couple and those similarly situated. The judge, in declaring that Florida's same-sex marriage ban is unconstitutional under the Fourteenth Amendment, found that:

Judge Garcia also noted that Florida's same-sex marriage ban denies couples equal protection of the law under both heightened scrutiny and (although the defendants do not put a basis forward) rational basis analysis. Amici argue a rational basis of procreation and child welfare, but the judge rejects these notions, despite not even having to, as amici "do not have standing to raise issues that have not been raised by the parties."

Judge Garcia did not address the question of the recognition of same-sex marriages from other jurisdictions, because he found the plaintiffs lacked standing to raise that issue. He ordered Monroe County to issue marriage licenses to same-sex couples beginning July 22, 2014.[17]

Appeal and stay

Florida Attorney General Pam Bondi filed a notice of appeal with the state Third District Court of Appeal the same day. This automatically stays enforcement of Garcia's ruling.[18] The plaintiffs have since twice tried, unsuccessfully, to have the stay lifted; first through a petition to Judge Garcia himself, and then through appellate court. The appeals court denied the plaintiffs' motion to vacate stay on July 23, 2014, in Florida v. Huntsman, No. 14-1783 (Fla. 3d. Dist. App.)[19]

Certification to Florida Supreme Court

On July 28, 2014, the appellee same-sex couples in Huntsman filed a motion with the Third District Court of Appeal asking it to exercise "pass through" jurisdiction in accordance with Florida Rules of Appellate Procedure 9.125(a). The motion states that in cases where "a final order or judgment requires immediate resolution," the appeals court can certify the case to be heard directly by the Florida Supreme Court, where the issues pending "are of great public importance or have a great effect on the proper administration of justice throughout the state." The motion argues that deprivation of appellees' fundamental right to marriage is an irreparable injury as per Elrod v. Burns, 427 U.S. 347 (1976), where infringement of a constitutional right for even a minimal period of time constitutes this type of injury. It also argues that there "is a need to bring finality to this issue on a statewide basis so that clerks of the court throughout the state have uniform guidance as to whether they must issue marriage licenses on an equal basis to otherwise qualified same-sex couples."[20]

Estate of Bangor

On July 15, 2014, a hearing was held before Circuit Judge Diana Lewis, in West Palm Beach. Attorneys Andrew K. Fein, Esq. and Gail Hamaty-Bird, Esq., of Minerley Fein, P.A., in Boca Raton, Florida, argued the case for Simpson. Simpson testified on his own behalf, recounting his 37-year relationship with Bangor. No one from the Attorney General's office or the news media attended.

On August 5, 2014, the Circuit Court in Palm Beach County became the fourth state court to hold Florida's ban on same-sex marriage unconstitutional.[21] The decision arose out of the probate estate of Francis C. Bangor. Bangor was a Pennsylvania resident who owned a winter home in Boynton Beach, Florida. Bangor and his spouse, William Jason Simpson, entered into a Civil Union in Vermont in 2001, and were later married in the State of Delaware (which recognizes same sex marriage) in October 2013. Bangor unexpectedly took ill, and died on March 15, 2014. He left a Last Will and Testament which named Simpson to act as executor (which Florida calls Personal Representative). Under Florida law, however, a non-resident such as Simpson could only be appointed as Personal Representative if they were related to the decedent. Thus, Simpson could only qualify for appointment if the probate judge recognized Simpson as Bangor's "spouse." Judge Lewis issued her opinion,[22] holding that Simpson was entitled to be recognized as Bangor's surviving spouse, and that the Florida constitutional and statutory provisions purporting to bar this recognition were unconstitutional as applied to Simpson's case.[23] Unlike the prior circuit court cases in Florida where the rulings were immediately stayed pending anticipated appeals, Lewis did not stay her order, and simultaneously issued Letters of Administration to Simpson, thus completing his legal appointment to administer the estate, and making Simpson and Bangor's marriage the first same-sex marriage ever legally recognized in the State of Florida.

Simpson initially petitioned for appointment pro se but his request was rejected by a court clerk. After retaining counsel, Simpson filed an amended petition, which expressly set forth the constitutional issues. The amended petition was served upon the Attorney General of Florida, Pamela Jo Bondi, in accordance with Florida law mandating that the state's Attorney General be notified of any constitutional challenges to state law. Bondi's office did not object to or otherwise contest Simpson's request.

Shaw v. Shaw

On January 15, 2014, Mariama Shaw, a Tampa woman who had married her wife in Massachusetts, filed a petition for dissolution of her marriage in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida.[24] The case was captioned Shaw v. Shaw and docketed number 14-DR-666. Shaw was seeking to have the state recognize her same-sex marriage for the purpose of granting a divorce. The spouses then entered into the collaborative divorce process, came to a full settlement agreement, and presented that agreement to the judge to ratify as part of a final judgment of divorce. However, after hearing arguments, the trial judge dismissed the petition of dissolution of marriage, and the parties are appealing.[25] On August 27, on a 10 to 3 vote, the judges of the Second District Court of Appeal asked the Florida Supreme Court to settle the case.[26]

Federal court

In Brunner v. Scott, consolidated with Grimsley v. Scott, the U.S. district court held Florida's ban on same-sex marriage unconstitutional, but the judge stayed enforcement of his ruling.

Brenner v. Scott

Main article: Brenner v. Scott

On February 28, 2014, civil rights attorneys filed a lawsuit in the U.S. District Court for the Northern District of Florida on behalf of a Florida same-sex couple who married in Canada. The case, Brenner v. Scott, was assigned to Judge Robert Lewis Hinkle. On March 13, 2014, attorneys for the American Civil Liberties Union filed a similar suit, Grimsley v. Scott, in the Northern District of Florida on behalf of a Miami-Dade LGBT advocacy group and eight same-sex couples already married in other states asking the courts to order Florida to recognize their marriages. It named Governor Rick Scott and three other state officials as defendants.[27][28][29][30]

Judge Hinkle ordered the Brenner and Grimsley cases consolidated for case-management purposes on April 21, 2014. Hinkle set a May 27 deadline for all briefings. On August 21, Judge Hinkle ruled that Florida's statutory and constitutional bans on same-sex marriage are unconstitutional. The judge stayed enforcement of his decision pending appeal.[31][32][33]

See also

References

  1. ^ Rothaus, Steve (August 5, 2014). "Florida must recognize gay widower's Delaware marriage, Palm Beach judge rules". Miami Herals. Retrieved August 21, 2014.
  2. ^ "Askew signs bill to ban gay marriage". Boca Raton News. June 9, 1977. Retrieved February 15, 2013.
  3. ^ "New Florida Laws Prohibit Same-Sex Marriage, Adoption". Toledo Blade. June 8, 1977. Retrieved February 15, 2013.
  4. ^ Michael J. Kamotz, "For Better or For Worse: A Critical Analysis of Florida's Defense of Marriage Act," Florida State University Law Review, III. C., Vol. 25, No. 2 (Winter 1998). Retrieved February 3, 2014
  5. ^ "Gay couples in Florida sue for marriage". The Advocate. February 26, 2014. Retrieved February 3, 2014.
  6. ^ Varian, Bill (March 12, 2004). "Tampa offers benefits to same-sex couples". St. Petersburg Times. Retrieved February 3, 2014.
  7. ^ Schneider, Mike (March 19, 2004). "Eight gay couples refused marriage licenses in Orlando". Florida Times Union. Retrieved February 3, 2014.
  8. ^ Brunn, et al, eds., Stanley D. (2011). Atlas of the 2008 Elections. Rowman & Littlefield. p. 258. {{cite book}}: |last= has generic name (help)CS1 maint: multiple names: authors list (link)
  9. ^ "Equality Florida, Freedom to Marry launch 'Get Engaged' effort to repeal state's gay-marriage ban". The Miami Herald. June 19, 2013.
  10. ^ "Brito files to begin statewide petition drive, hoping to end Florida's gay-marriage ban in 2014". The Miami Herald. June 21, 2013.
  11. ^ Pardo v. State, 596 So.2d 665 (Fla. 1992)
  12. ^ Man, Anthony (January 21, 2014). "Lawsuit seeks to overturn Florida ban on gay marriage". Florida Sun Sentinel. Retrieved January 21, 2014.
  13. ^ Rothaus, Steve (March 13, 2014). "Married gay couples sue Florida for recognition". Tampa Bay Times. Retrieved March 13, 2014.
  14. ^ Decision, accessed July 25, 2014
  15. ^ Rothaus, Steve. "Gay Key West men sue for right to marry in Florida after Monroe clerk's office denies couple a license". Miami Herald. Retrieved April 10, 2014.
  16. ^ Staff Reports (July 7, 2014). "Key West couple's challenge to Fla. same-sex marriage ban goes to court". LGBTQ Nation.com.
  17. ^ Luis M. Garcia, Circuit Judge (July 17, 2014). "Order on Plaintiff's Motion for Summary Judgment, Huntsman v. Heavilin, No. 2014-CA-305-K" (PDF). Sixteenth Judicial Circuit Court of Florida. LGBTQ Nation.com.
  18. ^ Johnson, Chris (July 17, 2014). "Judge rules for marriage equality in Florida Keys". Washington Blade. Retrieved July 17, 2014.
  19. ^ Lagoa, Barbara; Emas, Kevin; Fernandez, Ivan, Judges of the District Court of Appeals (July 23, 2014). "Order on Motion to Vacate Stay, Florida v. Huntsman, No. 14-1783". Florida Third District Court of Appeal. Scribd.com.
  20. ^ Vigil-Farinas, Elena; Restivo, Bernadette; Reilly, Jessica; Hampton, Thomas (Attorneys for Plaintiff-Appellees) (July 28, 2014). "Appellees' Suggestion for Rule 9.125 Certification of Appeal to Florida Supreme Court, Huntsman v. Heavilin, No. 14-1783". Florida Third District Court of Appeal. Scribd.com.
  21. ^ http://www.miamiherald.com/2014/08/05/4273748/florida-must-recognize-gay-widowers.html
  22. ^ http://www.palmbeachpost.com/documents/2014/aug/05/document-order-amended-petition-administration-ban/
  23. ^ http://www.palmbeachpost.com/news/news/local/palm-beach-county-judge-declares-gay-marriage-ban-/ngwM5/
  24. ^ Anton, Leonora (March 24, 2014). "Tampa couple's divorce could challenge same-sex marriage ban". Tampa Bay Times. Retrieved May 11, 2014.
  25. ^ Cordover, Adam (May 10, 2014). "Tampa Same Sex Divorce Dismissed by Trial Judge; Parties to Appeal". ABC Family Law Blog. Retrieved May 11, 2014.
  26. ^ Stutzman, Rene (August 27, 2014). "Appeals court asks Florida Supreme Court to take up the issue of gay marriage". Orlando Sentinel. Retrieved August 27, 2014.
  27. ^ Schoettler, Jim (March 3, 2014). "Jacksonville civil rights attorneys challenge Florida laws refusing to recognize same-sex marriages". The Florida Times-Union. Retrieved March 7, 2014.
  28. ^ "SAVE & ACLU file marriage recognition lawsuit". Safeguarding American Values for Everyone. March 13, 2014. Retrieved April 8, 2014.
  29. ^ "Couple files federal lawsuit challenging Florida's ban on same-sex marriage". LGBTQ Nation. March 6, 2014.
  30. ^ Rothaus, Steven (March 13, 2014). "Eight gay couples sue Florida to recognize their legal marriages Read more here: http://www.miamiherald.com/2014/03/13/3992235/eight-gay-couples-sue-florida.html#storylink=cpy". Miami Herald. Retrieved March 13, 2014. {{cite news}}: External link in |title= (help)
  31. ^ Hinkle, Robert (U.S. District Judge) (April 21, 2014). "Order Setting a Partial Schedule and Consolidating the Cases, Brenner v. Scott, No. 4:14-cv-107" (PDF). U.S. District Court for the Northern District of Florida, Tallahasseee Division. Retrieved May 27, 2014.
  32. ^ Sweeney, Dan (August 21, 2014). "Same-sex marriage ban struck down in Florida federal court". Sun-Sentinel. Retrieved August 21, 2014.
  33. ^ Snow, Justin (August 21, 2014). "Federal judge rules Florida same-sex marriage ban unconstitutional". Metro Weekly. Retrieved August 21, 2014.
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