By Catherine Blackburn

Blackburn Law Firm, PLLC – LifePlanLaw.com


With same sex marriage now recognized in 32 states, people ask, “what about Florida?"  The short answer is, “not Florida,” at least not yet.  Why not? You may ask.

Florida lies in legal limbo right now.  State and federal courts have ruled that Florida’s ban against same sex marriage is unconstitutional.  However, state officials have appealed those decisions and no final decision has been issued by higher courts.  For now, same sex marriage is not recognized in Florida, and this state of the law harms same sex couples every day. 

Marriage equality has come to the states by different paths.  One path is legislative – the legislature passed a law recognizing same sex marriage or the voters passed a law recognizing same sex marriage (such as Connecticut, District of Columbia, Vermont, New Hampshire, Rhode Island, New York, Maine, Maryland, Washington, Delaware, Minnesota, Hawaii, Illinois).  Another path is judicial – a state court ruled that the ban on same sex marriage is unconstitutional (such as Massachusetts, California, Connecticut, Iowa, New Jersey, New Mexico).  Same sex marriage is solidly legal in these states. 

Then came the federal court decisions.  On June 26, 2013, the United States Supreme Court announced its decision in United States v. Windsor striking down a portion of the federal Defense of Marriage Act (DOMA) as unconstitutional.  Following the Windsor decision, 16 federal district courts (the lowest tier federal court) ruled the bans against same sex marriage unconstitutional in Oklahoma, Utah, Virginia, Nevada, Ohio, Kentucky, Texas, Michigan, Arkansas, Idaho, Oregon, Pennsylvania, Wisconsin, Indiana, Colorado, Florida).  In addition, several Florida state courts ruled the ban against same sex marriage unconstitutional (Monroe County – Key West, Dade County – Miami, Palm Beach County).  One federal district court (Louisiana) upheld the ban. 

Almost all of the federal district court decisions were put on hold (“stayed”) immediately.  This was to allow opponents of same sex marriage to file appeals.  And appeal they did. 

Then the federal courts of appeals (the second tier of federal courts) began to rule.  The first to rule was the Tenth Circuit Court of Appeals.  That court held Utah’s ban unconstitutional, and the Tenth Circuit also covers Colorado, Kansas, New Mexico, Oklahoma, and Wyoming.  Its decision is binding on these states. 

Next, the Fourth Circuit Court of Appeals ruled the ban unconstitutional in Virginia.  The Fourth Circuit also covers Maryland, North Carolina, South Carolina, and West Virginia. Its ruling applies to, and is binding, on those states. 

The Seventh Circuit Court of Appeals also ruled the ban unconstitutional in Indiana and Wisconsin.  Its ruling also applies to, and is binding on, Illinois, Indiana, and Wisconsin. 

Most recently, the Ninth Circuit Court of Appeals ruled the ban unconstitutional, and its ruling applies to, and is binding on, Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. 

On October 6, 2014, the United States Supreme Court declined to hear appeals of the decisions of the Fourth, Seventh, and Tenth Circuit Courts of Appeals.  This left the decisions of these courts, and the Ninth Circuit decision, as the law of the land in their jurisdiction.  Immediately after the Supreme Court declined to hear the appeals, states began to give up on appeals and recognize marriage equality within their borders. 

You can readily see how we reached the situation today in which 32 states, plus the District of Columbia, recognize same sex marriage.  Another three states have district and circuit court decisions recognizing same sex marriage. 

In five states (Arkansas, Florida, Kentucky, Michigan, and Texas), federal district courts have ruled bans against same sex marriage unconstitutional.  In an additional three states (Louisiana, Ohio, and Tennessee), federal district courts have recognized marriage equality in a more limited way.  The next tier federal courts, the Circuit Courts of Appeals, have not yet ruled on these cases, so the state of marriage equality remains in limbo in these eight states. 

These states, including Florida, refuse to give up.  Governor Rick Scott and Attorney General Pam Bondi continue to fight against marriage equality, as do government officials in several other states. 

Pundits are closely watching the Sixth Circuit Court of Appeals that heard argument on cases from Kentucky, Michigan, Ohio, and Tennessee in August.  That court has not issued its decision, and pundits worry that it may uphold the bans.  

Texas lies in the Fifth Circuit Court of Appeals, and pundits worry that this court may also uphold the bans in Texas, Louisiana, and Mississippi.  

Florida lies in the Eleventh Circuit along with Alabama and Georgia.  The federal marriage equality cases from Florida are pending in this court.  The appeal in the Eleventh Circuit is early in the process, and a decision is unlikely for some time. 

There are also state court cases pending appeal in Florida.  The cases from Monroe County (Key West) and Dade County (Miami) are pending the Third District Court of Appeals for the State of Florida.  This court is widely expected to strike down the ban against same sex marriage.  There is another case pending in the Second District Court of Appeals for the State of Florida involving the ability of same sex couples to divorce in Florida. 

So, how does this all turn out?  I do not read political tea leaves very well, and this issue is hotly political.  If Rick Scott and Pam Bondi lose the pending election in Florida, Charlie Crist and George Sheldon have promised to withdraw appeals from the Florida court decisions.  Same sex marriage would be recognized in Florida immediately.  

What happens if the Sixth Circuit Court of Appeals or the Fifth Circuit Court of Appeals upholds the bans?  Well, that will create a conflict between the federal circuits.  The Sixth or Fifth Circuit cases will be appealed, and the Supreme Court will decide which rulings prevail. 

Could the Supreme Court rule that states may constitutionally ban same sex marriage?  They could do that.  There are probably at least three justices who would rule that way, maybe four, even though such a ruling would reverse the decisions of the Tenth, Fourth, Seventh, and Ninth Circuits and throw the law of their states on its head.  If one or more justices leave the Supreme Court, another would be appointed by a political process.  Who is appointed depends on who is president (the president nominates Supreme Court justices) and which party controls the Senate (the Senate must approve Supreme Court nominations).  You can guess as well as I what might happen.  Suffice it to say that this is an important issue – and an issue to keep in mind when voting.




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