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.

The Changing Tide of Gay Rights


A Year Ago…as we prepared for St. Pete Pride…

The United States Supreme Court struck down the federal Defense of Marriage Act (DOMA) in a 5:4 decision, with Justice Anthony Kennedy issuing the deciding opinion as he had with Romer v. Evans in 1996 (striking down Colorado’s ban on all anti-discrimination laws that protect gay people) and Lawrence v. Texas in 2003 (striking down state sodomy statutes). In the generations to come, people will honor Justice Kennedy for “getting it” and protecting fundamental constitutional rights against the desire of voters to relegate gay people to second-class status.

“DOMA . . . tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second tier marriage. The differentiation demeans the couple . . . . And it humiliates tens of thousands of children now being raised by same-sex couples. . . . Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. . . . DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families . . . And it denies or reduces benefits to families upon the loss of a spouse and parent.”

Since the Windsor decision, twelve federal district courts in Ohio, Utah, Oklahoma, Kentucky, Virginia, Texas, Tennessee, Pennsylvania, Michigan, Indiana ,Idaho, and Wisconsin have struck down at least some portion of the states’ bans against same-sex marriage. Although many of the federal decisions are “on hold” while the federal courts of appeals consider the issues, nineteen states plus Washington DC recognize same-sex marriage: California, Connecticut, Delaware, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Washington DC. In Florida, six lawsuits are pending that challenge Florida’s ban on same-sex marriage (two in federal court and four in state courts, including a lawsuit to permit a same-sex married couple to divorce).

Lest you think that bans on same-sex marriage have been relegated to the garbage heap, think again. Six different federal courts of appeals must now review the federal decisions. It is likely that one or more of those courts will say that state voters have the right to exclude gay people from the fundamental right to marry. It is likely that this issue will rise again to the United States Supreme Court in 2015 or 2016.

What will happen in the Supreme Court? We know that four out of nine justices stand ready to uphold bans on same-sex marriage. Who will be a justice on the Supreme Court in 2015 or 2016? That depends on whether a current justice retires or dies. If a current justice retires or dies, the United States Senate will decide who can take his or her place. President Obama’s nomination must be approved by the Senate.

Although very important, marriage equality isn’t everything. Single and coupled members of our community require legal advice and representation on many matters. At LifePlanLaw.com/Blackburn Law Firm, PLLC, I can help with many of them. If I cannot help on your specific matter, I can often recommend someone who can.

As we prepare for the St. Pete Pride parade and street festival, we have much to celebrate and many reasons to be grateful. Please visit the LifePlanLaw.com booth at Pride, say hello, ask questions, pick up some promotional items, and sign up to win a free life plan package and get 20% off any service!

I look forward to seeing you there!


Same-sex marriage bans fail constitutional test

Gay Wedding Exchanging Rings

By Catherine E. Blackburn, special to the Times
Friday, February 14, 2014 2:32pm

A few days ago, a federal court in Louisville, Ky., joined courts in Utah, Ohio and Oklahoma in striking down some portion of a state’s ban on same-sex marriages. Following the U.S. Supreme Court decision in United States vs. Windsor in June, these courts ruled that traditional views of marriage cannot stand against the equal protection guarantee of the 14th Amendment to the U.S. Constitution — passed in 1868 after the Civil War. Is this a runaway train driven by judges who have no respect for legislators and voters? If it is, why have the attorneys general of Virginia and Nevada, as well as the governors of New Jersey and Nevada, declined to defend their states’ ban on same-sex marriage?

The decisions of these diverse courts and elected officials do not display a lack of respect for legislators and voters; instead, they show a profound respect for our constitutional system of government and a body of law that has developed since 1868. In particular, they reflect principles articulated in 1967 when the Supreme Court ruled that Virginia may not constitutionally prohibit interracial marriage.

At the heart of the 14th Amendment is a simple principle: A state law that treats one class of citizens differently from the rest must be rationally related to a legitimate purpose. In United States vs. Windsor, and each of the recent cases, the courts asked, What legitimate purpose is rationally related to a ban on same-sex marriage? One after another, they found none.

In the cases, state officials and outside parties claimed that interests in procreation justified a ban on same-sex marriage. Yet this reason is not rationally related to banning only same-sex marriage. After all, states neither bar couples who cannot have children from marriage, nor require married couples to have children. In fact, state marriage laws are not linked to procreation at all.

In none of the cases could supporters of the ban articulate a logical connection between, or produce evidence that, banning same-sex marriage somehow increased opposite-sex marriage. Likewise, proponents offered no evidence that same-sex couples are less capable of raising children.

In fact, the Florida attorney general attempted to prove exactly this point at trial in Miami-Dade County to uphold Florida’s ban on adoption by lesbian and gay persons — and lost. When the Florida 3rd District Court of Appeal ruled in 2010 that the Miami-Dade court correctly weighed the overwhelming evidence in support of lesbian and gay parents’ ability to raise children responsibly, the state declined to appeal further.

In every case, state officials have claimed their bans on same-sex marriage uphold the traditional view of marriage. There is no doubt that same-sex marriage bans uphold many people’s traditional views of marriage, and this is where they collide directly with the Constitution. As eloquently stated by the Kentucky judge, “(t)hat Kentucky’s laws are rooted in tradition, however, cannot alone justify their infringement on individual liberties. … Over the past 40 years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties.” The Utah, Ohio and Oklahoma courts agreed, and the supporters of same-sex marriage bans cannot produce cases that allow some persons’, even a majority’s, view of “tradition” to violate a class of persons’ constitutional rights.

Instead of increasing opposite-sex marriages or supporting responsible procreation and child rearing, these diverse courts unanimously found that bans on same-sex marriage demeaned gay and lesbian citizens, relegated them and their children to second-class status, and brought financial harm, instability, and humiliation to their families and children. These are not constitutionally permissible goals.

On Jan. 21, six same-sex couples filed suit in Miami-Dade Circuit Court to assert their constitutional right to a marriage license. The state is now required to show how Florida’s ban on same-sex marriage is rationally related to a legitimate purpose. What reasons will Florida officials assert? Or will they, like officials in New Jersey, Virginia and Nevada, decline to defend a tradition that cannot stand alone against the Constitution?

Catherine E. Blackburn is a St. Petersburg lawyer who provides legal life planning services to Florida residents. She regularly prepares legal documents that carry out the wishes of lesbian, gay, bisexual, transgender and queer persons in a legal environment that limits the rights of LGBTQ people. She wrote this exclusively for the Tampa Bay Times.