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The DOMA Decision, and Same-Sex Marriage in Florida

The United States Supreme Court recently handed down it’s decision in the DOMA (Defense of Marriage Act) case, and ruled that the Federal government cannot deny the status of married, when applying federal laws and programs to same-sex couples legally married under the laws of their state. You can find the full text of the decision at this link United States v. Windsor. The decision does not rule on the right of a state to ban same-sex marriage and is based on the historical rights of the states to define marriage, but many parts of the decision are relevant to a state like Florida’s ban on same-sex marriage. The decision also brings to the fore-front the issue of a state’s refusing to recognize marriages from another state.

Florida Statues Section 741.04 prohibits issuance of a marriage license for same-sex couples. Section 741.212 defines marriage as between a man and a women, and also provides that a same-sex marriage entered into in another state or any other jurisdiction is not recognized and is not given any effect in Florida.

Many of the findings and rulings of the Supreme Court in the DOMA case are relevant in looking at Florida’s ban on same-sex marriage. The Supreme Court’s opinion indicates that a statute’s being motivated by animus, including moral disapproval of a group of people, is relevant in determining if the disparate treatment of the group is appropriate. The Court included attempts to defend a “traditional” definition of marriage based on moral disapproval of same-sex marriage, as part of the factors in the case supporting a finding that the section of DOMA in question was motivated by animus toward same-sex couples. The Court also noted the potential negative or unwarranted effects on children of their parents’ marriages not being afforded the same recognition or dignity in the community as other marriages, and in fact found that the Act humiliates children being raised by same-sex couples. This issue is relevant in looking at Florida’s not recognizing same-sex marriages — it is not illegal for same-sex couples to raise children together. Some opponents of same-sex marriage might suggest that same-sex couples should not raise children together, but it seems the approach suggested by the Supreme Court’s decision, affording equal recognition and dignity is clearly better. A parent’s right to raise their children is a constitutionally protected right.

Another context to consider in looking at Florida’s not recognizing same-sex marriages from other states, is that states, including Florida, usually recognize the laws and court decisions of other states. The Full Faith and Credit clause of the United States Constitution, Article IV, Section 1, provides for each states recognizing and giving effect to the laws and court decisions of other states. Florida also applies the principle of “comity” in respecting and recognizing court decisions of other countries. The Full Faith and Credit clause does not apply to laws or decisions of other countries, and Florida courts will refuse to give effect to the decision of a foreign court, for example if the decision is contrary to some strong public policy of the State. This public policy exception generally does not apply in determining whether to recognize the decisions of another State, but there is a more limited exception that Florida can apply in deciding to not respect the decision of another State – if the decision is “repugnant” to some core principle under Florida law. Florida can of course have its own laws regarding licensing, for example the right to drive or issuing an occupational license, but the status of being married goes to issues/rights which are protected by both the U.S. and Florida constitutions. Heterosexual marriages from other states are recognized in Florida, without a requirement, for example, to get a new marriage license. Florida’s statute banning same-sex marriages treats same-sex couples differently than heterosexual couples.

Without regard to whether this factor alone or in combination with other factors would be enough to render all or part of Florida’s statute unconstitutional, it does appear that Florida’s statute banning same-sex marriages is based on a decision that these marriages are repugnant to Florida’s core principles; and I’m guessing a review of the legislative history of Florida’s statute would reveal animus similar to that discussed by the Supreme Court in its decision.


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