Back in June, I wrote a paper about why Florida should repeal its ban on same-sex marriage. Only two months later, U.S. District Judge Robert Hinkle announced that the court will lift Florida’s ban on same-sex marriage. On January 6, gay couples throughout Florida will begin receiving marriage licenses that some of them have waited months, years and even decades to receive.
Below is my paper on why I think same-sex marriage should be legal in Florida, which are some of the same reasons Judge Hinkle cited in his opinion ruling back in August.
Keep in mind that the paper was written on June 5, 2014. It makes me extremely happy to read this paper and know that it is now outdated.
SHOULD HOMOSEXUAL MARRIAGE BE PERMITTED IN FLORIDA?
Homosexual marriage should be permitted in Florida because the majority of the population agrees that homosexual marriage should be legalized and not allowing homosexual marriage directly violates the Fifth and Fourteenth Amendment of the United States Constitution.
Popular Opinion
According to the principles of government power, an actor with authority, such as the state of Florida, gains legitimacy when the majority of its population follows the law. The majority, currently about fifty-six percent of the population believes that homosexual couples should be allowed to marry in the state of Florida. When the opinion of the general public does not correlate with actions taken by the state’s legislature it is logical to assume that there is an external factor–stronger than public opinion–leading to the disparity.
Florida’s current Statute does not recognize marriage between two men or two women. The laws that are currently in place include the following: Florida Statute Section 741.212, enacted in 1997, which states, “Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida…are not recognized for any purpose in this state,” and a constitutional amendment adopted in 2008 to prohibit the recognition of same-sex marriages, which involved the addition of Article 1, Section 27 to the Florida constitution. Article 1, Section 27 states that “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,” thereby illegalizing homosexual marriage.
Over the span of six years the percentage of the population that opposes same-sex marriage has declined. Support for not allowing same-sex marriages went from the two-third-majority vote needed to pass the constitutional amendment back in 2008 to about thirty-nine percent. Factors attributed to the steep decline of opposition include the impact of political activism in regards to gay marriage. “The consistent political engagement by LGBT advocates over many years on a range of issues, coupled with our growing cultural visibility, has gradually revealed anti-gay stereotypes and fear-mongering to be preposterous.”
Now that a majority of the population is in favor of legalizing homosexual marriage in Florida, politicians can openly support same-sex marriage without the fear of sharp opposition by the public. A prime example of how Floridian politicians are more willing to openly support same-sex marriage is Charlie Christ, who signed a petition in Florida in 2006 to put ban on same-sex marriage that is currently in place in Florida on the ballots. In 2013, Christ changed his position on the topic and currently identifies as a Democrat that supports marriage equality in Florida. Christ’s shift in opinion illustrates the greater acceptance of same-sex marriage within the political sphere.
However many hours activists, young and old, spend hoping to sway the public opinion on same-sex marriage, the only way that same-sex marriage will be permitted in Florida is by getting the young to vote. Seventy-one percent of those between the ages of eighteen and twenty-nine in the state of Florida support same-sex marriage. But since only about half of those in that age bracket went out to vote in the 2008 presidential election versus seventy percent of the population aged sixty-five and above. If more young people went out to vote in Florida, the policies enacted by the Floridian congress would reflect the opinions of the youth and in turn support the opinion of the majority of the general population. Thus the reason why same-sex marriage is not legal in Florida is because older voters outvote young voters, not because there is a general consensus that homosexual marriage should remain illegal in Florida.
The Equal Protection Clause
The Fourteen Amendment, known as the Equal Protection Clause, of the United States Constitution was adopted during the Reconstruction Era, “guaranteeing equal rights to all Americans…the states were prohibited from abridging the rights of American citizens…” The Fourteenth Amendment extends the rights laid out in the Fifth Amendment–life, liberty, property–to all persons, originally to extend to Fifth Amendment rights to freed slaves in the Reconstruction Era.
The state of Florida, by upholding Article 1, Section 27 violates the constitution. Not granting marriage equality between same-sex couples and heterosexual couples violates the Equal Protection Clause, therefore Article 1, Section 27 is unconstitutional.
In 2013, United States v. Windsor repealed Section 3 of the Defense of Marriage Act (DOMA), highlighting how unconstitutional it is to prohibit same-sex marriages, as it not only violates the Fourteenth Amendment, but also the Fifth Amendment. Section 3 of DOMA states, “In determining the meaning of any Act of Congress…the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
In the Supreme Court ruling, it was deemed unconstitutional to deny equal liberties and placed a burden on the same-sex couples that legally obtained marriage licenses. The burden and inequality on same-sex couples stems from the fact that the couples–particularly Windsor and Spyer who were married in Ontario, Canada prior to United States v. Windsor–that were legally entitled to benefits from the state were denied these marriage benefits due to their sexual orientation.
Laws that discriminate on the basis of sexual orientation are subject to second-order rational basis scrutiny, which implies that the law must be related to a state interest and cannot put an unreasonable burden on persons affected by the law. “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”
The United States v. Windsor decision allows for the recognition of same-sex marriages on a federal level, thus providing same-sex couples that are legally married federal martial benefits such as federal estate tax exemption and permanent residency status for spouses of same-sex marriages. However, Section 2 of DOMA remains intact and gives states the right to continue to ban same-sex marriage and to not recognize couples that obtained licenses elsewhere.
Section 2 of DOMA violates the Fourteenth Amendment. In Barron v. Baltimore it was ruled that the Bill of Rights had no power over state governments. However, after the passage of the Fourteenth Amendment, the decision made in Barron v. Baltimore no longer stands due to the fact that the Fourteenth Amendment prohibits states from depriving any individual of life, liberty, or property. As previously mentioned, not granting equal protection under the law by not recognizing same-sex marriages violates the Equal Protection Clause.
Since Section 2 of DOMA is unconstitutional, Florida’s ban on homosexual marriage in place in Florida Statute Section 741.212 and in Article 1, Section 27 of Florida’s constitution must be deemed unconstitutional as well, since repealing Section 2 of DOMA would require that all states recognize same-sex marriages. Florida Statute Section 741.212 prohibits the recognition of marriages legally obtained in other states, thus crossing the line between intrastate affairs and interstate affairs. Interstate affairs fall under the jurisdiction of the federal government, which as of the decision of United States v. Windsor recognizes same-sex marriage. As there is a conflict between the federal government and Florida’s state government, the federal government’s decision must hold, thus making Florida’s ban on homosexual marriage illegitimate.
The illegitimacy of Florida’s current ban on same-sex marriage coupled with the general public’s approval of same-sex marriage and the unconstitutional basis of DOMA is reason enough to repeal Section 741.212 of Florida Statute and Article 1, Section 27 of Florida’s constitution.
Stephanie Brito 
