Florida’s Stance on Same-Sex Marriage

By: Brent V. Trapana

Brent V. TrapanaIn 2008, Florida amended its Constitution to define “marriage”. Article I Section 27 of the Florida constitution states: “

[i]nasmuch 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.”  Accordingly, Florida currently does not recognize same-sex marriages.

However, in the past 30 days, a hand-full of Florida courts have found Florida’s prohibition against same-sex marriages to be unconstitutional.  On July 17, 2014, Monroe County Judge Luis Garcia found that the same-sex prohibition was unconstitutional and ordered the Clerk of the Court to issue same-sex couples marriage licenses. On July 25, just eight days after Judge Garcia’s ruling, Miami-Dade Circuit Judge Sarah Zabel also found that same-sex couples had the right to marry in the State of Florida.  Both of these decisions are pending appeal by the Attorney General.

On August 4, Broward Circuit Judge Dale Cohen ruled Florida must recognize same-sex marriages.  Accordingly, Judge Cohen then dissolved the Vermont civil union of a woman whose partner left town after the couple separated.  Judge Cohen found that to “discriminate based on sexual orientation, to deny families equality, to stigmatize children and spouses, to hold some couples less worthy of legal benefits than others based on their sexual orientation, to deny individuals tax credits, marital property rights, the ability to dissolve their unions from other jurisdictions is against all that this country holds dear.”  He further noted—what seems to be coming more apparent in the past month—that the current stance of same-sex marriage in Florida and in the rest of the United States is changing. While an appeal may be properly filed within 30 days from Judge Cohen’s ruling, unlike the July 17 and July 25 rulings, Judge Cohen’s decision is not expected to be appealed by the Attorney General.

Most recently, Palm Beach County Circuit Judge Diana Lewis ordered that the surviving husband of a man who had recently passed away in March should be the personal representative of his late husband’s estate, despite the fact that he was not a resident of Florida.  The men were in a 37 year relationship before they married last year in Delaware. In her ruling, Judge Lewis acknowledged the growing trend of other states legalizing same-sex marriage and found Florida’s prohibition of same-sex marriage unnecessarily discriminated against same-sex couples.

These recent rulings give a glimpse into the future regarding the legal status of same-sex couples.  While currently no same-sex couple has legally wed in the State of Florida, these rulings will surely help that possibility become a reality. Currently, the prohibition against same-sex marriage remains unsettled pending the appeals by the Attorney General.  The overall outcome of these rulings will in turn affect other laws such as probate, estates and trusts, and marital dissolution.   However, until there is a definite ruling—by the Florida Supreme Court and possibly via direct appeal—finding Florida’s ban against same-sex marriage unconstitutional, the status quo remains unchanged and legal ramifications in many areas of law which affect same-sex couples hang in the balance.

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By |2017-03-13T13:31:11-04:00August 8th, 2014|Blog, Uncategorized|