Yet another judge has declared a ban on same sex marriages to be unconstitutional, and this one occurred right here in Florida. The Honorable Luis M. Garcia found the law preventing the Clerk of Monroe County from issuing marriage licenses to same sex couples invokes a fundamental right and has no rational basis and, accordingly, violates the Equal Protection and Due Process Clauses of the U.S. Constitution.
The order reads, in part, as follows:
Due Process Clause
There is no dispute by the parties that the right to marry is a fundamental right protected by the Fourteenth Amendment. The parting-of-the-ways occurs on whether the right to marry belongs to the individual and that individual’s choice of spouse or whether the state has the authority to dictate one’s choice in spouse to the opposite sex.
This court concludes that a citizen’s right to marry is a fundamental right that belongs to the individual. The right these plaintiffs seek is not a new right, but a right that these individuals have always been guaranteed by the United States Constitution. Societal norms and traditions have kept same-sex couples from marrying, like it kept women from voting until 1920 and forbid interracial marriage until 1967.
This court holds that the fundamental right to marry belongs to the individual and is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and that right encompasses the right to marry a person of one’s own sex. Thus, Article I, Section 27 of the Florida Constitution and Florida Section Statute 741.04(1) are unconstitutional.
Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall deny to any person within its jurisdiction equal protection of the law…Where a court suspects animus towards a disadvantaged group a more meaningful level of review is warranted. Several federal courts have used this heightened rational basis test or rational basis test with “teeth.” See City of Cleburne v. Cleburne Living center, 105 S. Ct. 3249 (1985); Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973); and most recently U.S. v. Windsor, 133 S. Ct. 2675 (2013).
In Windsor, the Supreme Court found animus when it held that the principle of the Federal Defense of Marriage Act (DOMA) violated the Equal Protection guarantee because the “purpose and practical effect of the law…[was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into a same sex marriage.”
The court finds that despite the Amici Curiae assertion that there is no evidence of animus toward homosexuals by the proponents of the Florida Marriage Protection Amendment (FMPA), there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae. For example, the affidavits of Dr. Reisman, filed by the Amici Curiae, for the proposition that, “a law encouraging homosexual behaviors appears to increase HIV risk and negative health outcomes and thus creates a danger both to the individual engaging in these behaviors as society as a whole.” The Amici Curiae also claims that homosexuality is not the result of biology, genetics or nature, but that in fact it is a choice that is naturally subject to change and within the control of the individual (See page 20-21 of Amici Curiae memorandum.) The Amici Curiae’s memorandum paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long term relationships or of raising children. (Pages 29-39). They contend, “the personal, social, and financial costs of these homosexual-specific health problems concern not just those who engage in homosexual activity, but also the larger community of citizens who help provide services and who must bear part of the burden imposed by the health challenges. It is eminently rational for the voters of Florida to seek to minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman.” (Page 39). The court finds that animus has been established by the plaintiffs and that the heightened rational basis test is appropriate.
The first “rational basis” argued by the Amici Curiae is that, “FMPA” memorializes millennia of history and tradition…Tradition alone cannot justify the unequal treatment of same-sex couples any more than it could justify the ban of interracial marriages, law forbidding women from voting, segregation, etc.
The second “rational basis” argued by the Amici Curiae is that FMPA encourages procreation. There is nothing in FMPA that encourages heterosexual couples to procreate. Procreation has never been a qualification for marriage. A married couple who by choice or by circumstances do not have children is no less married than a couple that chooses to have children.
The third “rational basis” argued by the Amici Curiae is that FMPA encourages a better environment for the rearing of children. It is undisputed that the State of Florida has a legitimate interest in insuring the welfare of children. However, FMPA by limiting marriages to heterosexual couples not only fails to further the State’s interest, but it in fact has the opposite effect. “(T)he only effect the marriage recognition bans have on children’s well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married.” Obergefell v. Wymslo, 962 F.Supp2d. 968 (S.D. Ohio 2013). The denial of marriage to same-sex couples, “(L)eads to a significant unintended and untoward consequence by limiting the resources, protections and benefits to children of same-sex parents.” Pedersen v. Office of Personnel Management, 881 F.Supp.2d. 294 (D. Conn 2012). The court holds that the plaintiffs have established animus by the proponents of FMPA and that the plaintiffs have also established that there is no rational basis for the unequal treatment of homosexuals by FMPA and Florida Statute 741.04(1). The court finds Article I, Section 27 of the Florida Constitution and Florida Statute 741.04(1) as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
The court went on to order the Monroe County Clerk to begin issuing marriage licenses to same-sex couples beginning no sooner than next Tuesday, July 22, 2014.
A couple of cautions should be stated here. First, as this is a State Circuit Court Judge, this ruling only applies to Monroe County. Accordingly, Hillsborough, Pinellas, and other Tampa Bay Counties are not ordered to provide same sex couples marriage licenses (though this gives them somewhat of a freer hand to choose to do so).
Further, this decision is likely to be appealed by the Attorney General, and the Attorney General is likely to request that the order be stayed, or paused, until the appellate court has had an opportunity to examine the case and issue a ruling. In that event, it may still be quite a while before Monroe County starts issuing marriage licenses, or they may begin issuing such licenses and then be required abruptly to stop.
On the other hand, though this ruling is not authoritative, it may be persuasive in our current Second District Court of Appeals case requesting that two women married in Massachusetts who moved to Florida be permitted to dissolve their marriage in this state.
In any event, I think Judge Garcia was spot on in his analysis, and it shows the currents of history are on the side of marriage (and divorce) equality.