To Have and to Hold: Modern Family Formation and Application of Constitutional Principles

by Fowler White Burnett, P.A.

Family law is a compilation of many areas of the law.  The cornerstone principles of constitutional law have recently elicited important legal questions for our family law practitioners and judges. 

Recall the year 1868 and §1 of the Fourteenth Amendment of the United States Constitution: “All persons born and naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 

It is well settled that out-of-state traditional marriages are recognized in Florida pursuant to Article IV, §1 of the Unites States Constitution which  states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.  Why then would the State of Florida not extend the same rights and privileges to out-of-state same-sex marriages and  civil unions?  Specifically, Article I, § 27 of Florida’s Constitution and Florida Statute 741.212 prohibits same-sex marriages in the State of Florida and does not recognize  same-sex unions within or performed outside of the state of Florida. The statute as written is silent with respect to whether the Florida courts can dissolve a same-sex marriage, leaving many interpretational ambiguities and un-chartered territory for our Florida courts.

The United States is hardly united when it comes to same-sex marriage issues. Unlike Florida, nineteen states plus Washington D.C. currently have the freedom to marry for same-sex couples[1]. Three states offer substantial protection for same-sex couples just short of the full protections of traditional marriage.  Nearly 44% of the U.S. population lives in a state with the freedom to marry for same-sex couples. Despite the disparities between the states, marriage litigation is currently pending in all states without the freedom for same-sex couples to marry.

According to recent polls, the majority of Floridians support some form of legal recognition for same-sex couples.  An April 2014 poll found 56% of Florida residents supported allowing same-sex couples to get married in Florida, with 39% opposed and 5% unsure or refusing to answer.[2]  While there is no legal recognition for same-sex couples to marry in Florida, 9 of Florida's 67 counties, including Broward County,[3] recognize domestic partnerships.

One year ago the Supreme Court of the United States in United States v. Windsor, 570 U.S. ____ (2013) held that the federal government cannot refuse to recognize a valid state sanctioned same-sex marriage with regard to federal legislation. Specifically the federal Defense of Marriage Act[4], which defined marriage and spouse to exclude same-sex partners, was declared unconstitutional since the act, "for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."  The opinion delivered by Justice Kennedy stated that, "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."  The Supreme Court's opinion and holding was confined to lawful marriages.

Since the landmark decision in Windsor in June 2013, there have been 36 consecutive nationwide rulings for the proponents of the freedom to marry. Locally in early August 2014, Broward Circuit Judge Dale Cohen was called upon to decide whether the Windsor decision applies to Florida’s state law which prohibits same-sex marriages or civil unions. In Brassner v. Lade, The Honorable Dale Cohen declared, “The issue before this Court is whether the State of Florida’s definition of marriage is in violation of the United States Constitution. After applying the law and considering all the issues, this Court finds that Florida’s ban on same-sex marriage violates the guarantees of due process and equal protection under the laws.  Florida’s prohibition on same-sex marriage denies some citizens, based upon their sexual orientation, the fundamental right to marry, and does so without a legitimate state purpose.”

In Brassner v. Lade, Ms. Brassner was joined by civil union in Vermont to Ms. Lade in 2002.  The only process to dissolve civil unions in Vermont is for both parties to sign the requisite forms.  In this case, despite diligent search, Ms. Lade was unable to be located in order to sign the necessary forms.  Furthermore, Ms. Brassner had been a resident of the State of Florida for 14 years.  Ms. Brassner now desired to marry a new partner, whom she could not marry, since marrying a new partner without first dissolving her prior civil union would constitute an invalid marriage which would be considered bigamous.  For additional support, the Petitioner cited Elia-Warnken v. Elia, 463 Mass. 29 (2012), wherein the Supreme Judicial Court of Massachusetts held that because a civil union was the equivalent of marriage, it was entitled to recognition by the Commonwealth of Massachusetts under the principle of comity, and therefore needed to be dissolved in order for his marriage to be valid.  Since the civil union had never been dissolved in Elia, the subsequent marriage was invalid.

Broward County attorney Nancy Brodzki argued for the Petitioner that due to her circumstances, there was no adequate remedy at law for Ms. Brassner except for this Court to grant her a Dissolution of her Civil Union.  Judge Cohen agreed with her and entered an Order declaring that Florida’s explicit failure to recognize legal out of state civil unions, without any rationale basis, violates the Due Process and Equal Protection Clauses of the United States Constitution.”  Judge Cohen’s opinion is drafted with constitutional prose and advice for a changing society to recall that “equality is the cornerstone of our nation”.  His ruling has garnered both national and international press.

Other Florida Circuit Courts have arrived at similar decisions.  In Pareto v. Ruvin, Miami-Dade Circuit Judge Sarah Zabel struck down Florida's ban on marriage for same-sex couples, ordering the Miami-Dade County Clerk to stop enforcing Florida's anti-marriage constitutional amendment.  In Huntsman v. Heavilin, Chief Circuit Judge Luis Garcia struck down Florida's ban on marriage for same-sex couples, ordering the Monroe County Clerk to stop enforcing Florida's anti-marriage constitutional amendment.  All of these Court Orders, and those of like nature, have been stayed pending Attorney General Pam Bondi's appeals.  Most recently Bondi filed a Motion to Freeze all same-sex marriage litigation on the state level until such time that the U.S. Supreme Court settles the issue nationally. Bondi cited the conservation of tax payer dollars as a rational for her request.

Recalling the United States Supreme Court 1967 landmark decision in Loving v. State of Virginia, it was held that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.  Chief Justice Earl Warren's opinion for the unanimous court held that: “Marriage is one of the most basic rights of man, fundamental to our very existence and survival.  To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Is Florida’s failure to grant a divorce to all of her citizens analogous to Loving v. State of Virginia wherein it was found unconstitutional to deny the most basic right to marry to a class of citizens due to their race?  Society is changing, modern families are forming, and the law is evolving.  A review of the basic principles upon which our great nation was founded will serve our practices well as we continue to navigate emerging issues to protect the rights of all people, no matter what their religion, race, creed or sexual orientation.




[4]1 U.S.C. § 7 and 28 U.S.C. § 1738C enacted September 21, 1996



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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