We may very well be on the cusp of a Watershed Moment here in Florida. In a state that currently offers no statewide legal recognition whatsoever for the hundreds of thousands of families headed by same-sex couples residing here, full marriage equality may well be on the horizon.
In January 2014, 6 same-sex couples and Equality Florida Institute filed a historic lawsuit in Miami-Dade County Circuit Court challenging Florida’s same-sex marriage ban (Pareto v. Ruvin*), and subsequent lawsuits were filed in Florida federal court challenging Florida’s ban on recognizing same-sex marriages performed elsewhere.
These Florida courts will soon decide whether to join the unanimous opinions of every court in the nation that has addressed the issue in the past 10 months, by ruling that Florida’s bans on same-sex marriage violate the federal constitution. If so, it will be a landmark judicial affirmation of our right to human dignity and legal equality, and will end an ignominious chapter of legislative discrimination that no longer reflects the views of most Floridians.
How did we get here? Last June, the United States Supreme Court issued a momentous ruling, striking down Section 3 of the Defense of Marriage Act (“DOMA”) in U.S. v. Windsor. This provision prohibited the federal government from recognizing legal same-sex marriages performed in states and other countries that permit same-sex couples to marry, effectively denying those couples (and their children) the more than 1,100 federal rights, benefits and privileges identified by the U.S. General Accounting Office that accrue to the status of being “married.”
When Windsor was decided, 12 states plus D.C. permitted same-sex couples to marry, and more than 30 states expressly banned marriage for couples of the same sex. In Windsor, the Court held that Section 3 of DOMA violated the equal protection clause of the 14th Amendment to the U.S. Constitution, finding that it served no legitimate governmental purpose, and in fact was intended to harm—and did harm—same-sex couples and their children.
Justice Kennedy wrote that such discrimination was “obnoxious” to our Constitution.
At the time, Chief Justice Roberts (who voted with the minority to uphold DOMA) noted the virtual tidal wave of public opinion that was changing in favor of marriage equality. A national ABC poll released just prior to the Windsor decision found that 58% of Americans support marriage equality, and that 81% of those between the ages of 18 and 29 do so. More recent polls reflect that 57% of Floridians support marriage equality (Public Religion Research Institute), and 75% support either marriage or equivalent rights for same-sex couples (Public Policy Polling).
These figures show that Florida’s current laws, which deny any protections for same-sex couples (even basic protections from discrimination) are woefully outdated and out-of-step with the evolving views of most Floridians on these issues.
Despite this widespread public support, and ever-increasing numbers of supportive mainstream legislators, right-wing extremists have continually blocked the Florida Legislature from considering even the barest form of legal recognition for Florida’s same-sex couples and their families—a domestic partnership registry that would grant a handful of basic protections like hospital visitation, healthcare surrogate, and funeral rights. Every day, countless Florida families are denied hundreds of critical rights, benefits and protections afforded by marriage under federal and state law, as well as the basic dignity of having their families recognized as equal, legitimate, and worthy of protection.
The good news is, thanks to the burgeoning legacy of the Windsor decision, marriage equality is spreading across the nation. Since Windsor, every state and federal court to consider the issue has struck down state marriage bans, and several state legislatures have enacted marriage equality laws, bringing marriage equality to 17 states (plus D.C.), and approximately 38% of the U.S. population.
Courts in 8 additional states have ruled that all or parts of the bans in their states are unconstitutional in violation of the equal protection laws, and dozens more such cases are currently pending. Attorney Generals in at least 4 of those pending cases have announced that they will not defend their states’ bans. And the 9th Circuit Court of Appeals issued a recent ruling interpreting Windsor to require heightened constitutional scrutiny in cases involving classifications based on sexual orientation, which will apply in pending and future cases challenging bans in all of the states in that Circuit.
Florida has now officially joined the movement. Our courts will soon rule on this issue, knowing that every court thus far post-Windsor has emphatically ruled that such bans are unconstitutional, and harmful These decisions came from state and federal courts, from red and blue states, from liberal and conservative judges. The conclusion is inescapable—the irrational prejudice and systemic discrimination that has existed in this country against its gay citizens cannot, and will not, withstand the rule of law.
Here in Florida, extremist Legislators, who will forever be stranded on the wrong side of history, can no longer hold back this inevitable countdown to equality. Tick tock, tick tock…
*Mary Meeks is co-counsel in Pareto v. Ruvin, along with the National Center for Lesbian Rights, Carlton Fields Jordan Burt, and Elizabeth Schwartz.