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Another Florida judge holds state’s same-sex marriage ban is unconstitutional

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A third Florida judge has found the state’s same-sex marriage ban unconstitutional.

The case, from Broward County, involves a woman who is seeking to dissolve her Vermont civil union; Florida’s ban prevents state officials from recognizing legal civil unions and marriages performed outside of the state.

Judge Dale Cohen struck down the ban, writing:

The Court’s decision does not speak to the views of society on traditional beliefs about marriage, religious beliefs about marriage, or morality; the decision is based on legal precedents regarding whether the State of Florida can intrude without a legitimate purpose on the fundamental right to marry and the right to have an out-of-state same-sex civil union recognized. This Court addresses the issues of liberty and equality and finds that without a rational relation to a legitimate state interest, Florida cannot impose inequality under the Constitution.

In its closing paragraphs:

To deny same-sex couples the right to enjoy the same laws, benefits and protections of opposite-sex couples without a rational governmental interest unduly violates their due process rights and their equal protection under the laws. To discriminate based on sexual orientation, to deny families equality, to stigmatize children and spouses, to hold some couples less worthy of legal benefits then others based on their sexual orientation, to deny individuals tax credits, marital property rights, the ability to dissolve their unions from other jurisdictions is against all that this country holds dear, as it denies equal citizenship. Marriage is a well-recognized fundamental right, all people should be entitled to enjoy its benefits.

The decision is stayed pending appeal. Two other Florida judges, from Miami-Dade County and Monroe County have also struck ruled in favor of same-sex couples.

Thanks to Equality Case Files for these filings

116 Comments

  • 1. hopalongcassidy  |  August 4, 2014 at 3:45 pm

    One more small breach in the wall of bigotry!

  • 2. DrPatrick1  |  August 4, 2014 at 4:46 pm

    I must say, I am surprised by this ruling. Civil union, domestic partnerships were a terrible, though arguably necessary, stepping stone on the path to equality. As there was no universal understanding of what a CU or DP was, it was impossible to transfer the relationship to non welcoming jurisdictions. They were intentionally created not to be a marriage, but to confer some, most or "all" rights of marriage, but were specifically created not to be marriage. For an uncooperative state to be forced to recognize the civil union when no such legal status exists in that state seems so absurd to me. I am quite grateful that the future of our movement will not rely on this ruling.

    Having said this, denying equal access to marriage is unconstitutional and the SCOTUS declaration of such is quickly approaching.

  • 3. Sagesse  |  August 4, 2014 at 4:59 pm

    Opponents of Houston equal rights ordinance fail to qualify for ballot [LGBTQ Nation]

    "Opponents of Houston’s LGBT-inclusive Equal Rights Ordinance (HERO) fell short of qualifying for a ballot referendum, Mayor Annise Parker announced Monday afternoon.

    "The petition needed at least 17,269 valid signatures from registered Houston voters to put a repeal of the ordinance before voters in November.

    "City Attorney David Feldman said Monday the number of valid signatures submitted for the petition came to only 15,247."
    http://www.lgbtqnation.com/2014/08/opponents-of-h

  • 4. JayJonson  |  August 4, 2014 at 5:03 pm

    The key phrase in the conclusion is "equal citizenship."

  • 5. Bruno71  |  August 4, 2014 at 6:01 pm

    It got us the ruling we needed in the end though. The ruling overturns the 2008 amendment, which includes marriage. The judge specifically expanded the scope of the case to question the validity of the amendment as a whole, and the ruling addresses the issue of marriage as well as CUs/DPs.

  • 6. Bruno71  |  August 4, 2014 at 6:02 pm

    And the court case begins in 3, 2, 1…

  • 7. DrPatrick1  |  August 4, 2014 at 6:29 pm

    But no citizen in FL had the right to a civil union as it did not exist in FL. Prohibiting the couple from marrying was, is unconstitutional. But how can a state dissolve something that does not exist in the state?

    This is, unlike marriage equality, the creation of a new right.

  • 8. DrPatrick1  |  August 4, 2014 at 6:33 pm

    No, this seems to be such a weak decision and one whose legal justification is quite suspect. I highly doubt it could by itself establish any legal precedent, and if challenged, likely would not be able to withstand review.

    Having said this, I hope this case is not appealed, and the women are allowed to dissolve their legal relationship as desired. It is a terrible shame they are being subjected to this indignity to compound the dissolution of their relationship. When they were subjected to second class citizen status, this is the messy side effects. This would clearly not have happened had they been allowed equality from the get go

  • 9. Bruno71  |  August 4, 2014 at 6:36 pm

    There is no "they." One of the women has disappeared, thus why the remaining spouse has had to fight this in court (she can't get a dissolution in Vermont of the CU without an affidavit from the missing spouse). Civil unions may suck, but they exist, and this woman is stuck in one. This ruling isn't that weak, although there are some errors in it. It probably won't make a huge difference in the end, given there are other Florida cases and a national ruling likely next year as well, but I think you're making too much of the weakness of this one.

  • 10. Bruno71  |  August 4, 2014 at 6:39 pm

    Florida doesn't have civil unions because the 2008 marriage amendment banned them and out of state recognition of them. How is this woman supposed to get a "divorce" (even if it's in a CU) if she can't in Vermont and Florida has a law that won't recognize her status? She can't retroactively change her CU to a marriage in Vermont either. She's stuck. The courts have to take these particular circumstances into account.

  • 11. brandall  |  August 4, 2014 at 6:52 pm

    AR: Same-sex couples challenging Arkansas' gay marriage ban asked Supreme Court Justices to Recuse Themselves

    "Same-sex couples challenging Arkansas' gay marriage ban on Monday asked any state Supreme Court justices who plan on seeking re-election to recuse themselves, arguing a legislative resolution supporting the prohibition could sway their opinion."

    "A legislative panel in June approved a resolution condemning Piazza's decision and urging justices to uphold the ban."

    My comments: In the ME cases, this is the first filing of this type. After Iowa voted justices out of office, this is a very valid concern. And if AR did not rule in our favor, that verdict would be highly suspect in itself because of what happened in Iowa.
    http://www.baxterbulletin.com/story/news/local/20

  • 12. Jen_in_MI  |  August 4, 2014 at 7:52 pm

    Fascinating development. Thank you for flagging this!

  • 13. DrPatrick1  |  August 4, 2014 at 8:13 pm

    The constitutional prohibition will indeed be struck, but not due to this case. If, after the amendment is struck down, the AG of FL wants to absolve FL from partaking in the VT civil union process, I think that is a case "our" side may lose. I suspect this woman's best recourse would be to petition VT for an exemption to their requirements to divorce.

    While many argue about the full faith and credit clause of the constitution being relevant to the ME discussion, it is a much larger stretch to have one state's novel legal arrangements be enforced in other states.

    This is why the word MARRIAGE, and not SAME SEX MARRIAGE is important. If this is the same right, it is universal and cannot be denied us. If this is a novel arrangement, it might be reasonable to allow some states to "experiment" with this novel arrangement while allowing others their traditions. Language is important. It is these very issues which explain just how unfair the separate but equal status is.

  • 14. DrPatrick1  |  August 4, 2014 at 8:29 pm

    Agreed, the courts need to help her resolve this issue. This is an arrangement she willingly entered in VT and with VT. The VT rules have not changed since her union was entered into. The special relief she seeks should be asked of VT, the state that has this unique arrangement she chose to enter. Either she evaded the laws of her home state to enter into a union which no other state could dissolve, or she moved after entering a union no other state could dissolve.

    If this had been a marriage, the case would be sound. As it is, it is not a marriage, and that limits her recourse.

    I am not a lawyer, and I have been surprised at many points along the road to equality. But this decision seems to have the law wrong.

    In any case, I hope this woman's journey to finality is no longer than necessary. I feel for her situation

  • 15. Fortguy  |  August 4, 2014 at 8:55 pm

    The fun part is that, whether valid or not, the petitions are a public record, and their signers have long before today's decision already been "outed" on an online database for all their neighbors or anyone else to see.

    UPDATE: Never mind. The webpage has been taken down for now. However, the website still maintains their right to post the identities of the signers.

  • 16. SeattleRobin  |  August 4, 2014 at 9:06 pm

    I see where you're coming from and tend to agree with you. Marriage may vary from state to state in who is eligible, but once married a marriage in Vermont is no different than a marriage in Florida. So there is no issue with divorcing in the non-wedding state. But there is no uniformity in CUs and DPs from state to state. A local court can't unwind a legal status that doesn't even exist in their system.

    This muti-tiered approach that has been going on for many years will continue to cause messes for a long time after we have nationwide equality. Which is one reason I think Washington chose to automatically convert our DPs to marriages unless the couple opted out. It helps clean up some of the mess retroactively. That decision was criticized by some here, but was the least intrusive.

    I think the best thing that could be done is states that offer DPs or CUs should remove their residency requirement for dissolving the status. That way people who move away can take care of it from another state where the status is meaningless. Extremely few people can afford to pull up stakes and reside in another state for six months or a year just to get a piece of paper. And it's especially insulting in cases where the DP or CU was a weak thing with few benefits to start with. Included needs to be the option to claim abandonment, just like there is with marriages.

  • 17. Ragavendran  |  August 4, 2014 at 9:11 pm

    Massachusetts did not have civil unions either, but its Supreme Court, in a case that also involved a Vermont civil union, ruled unanimously that civil unions are equivalent to marriage and must be recognized. What's stopping that from happening in Florida is its marriage ban.

    I do agree with you that on first glance, it seems like Vermont slipped when it did not think of a situation where one of the parties to a civil union absconds and the other seeks dissolution of the union, and it seems unfair that Florida should be held responsible for that mistake, and that this fight must therefore be fought in Vermont courts. Let's see if an appeals court agrees with this ruling or not.

  • 18. SeattleRobin  |  August 4, 2014 at 9:11 pm

    What a mess. While the concern is valid, asking judges to recuse themselves for political reasons is a surefire way to be facing judges who are pissed off at you. Even the ones not being asked to recuse themselves.

  • 19. Zack12  |  August 4, 2014 at 11:14 pm

    I understand your fear but in the same breath, let's say the judges did rule against us, how could what the legislature has threatened to do not play a part in it?

  • 20. SeattleRobin  |  August 5, 2014 at 6:12 am

    That's why I said it's a mess.

  • 21. JayJonson  |  August 5, 2014 at 6:23 am

    I don't see why she cannot get a divorce in Vermont (not that she should have to). After marriage equality was achieved in Vermont in 2009, the state quit offering civil unions, but it continued to recognize those that had been performed. So she should be able to get a divorce there. I suspect, however, like many states, Vermont has no residence requirement to get married there, but does have a residence requirement to divorce there. So she would likely have to establish residence in Vermont before being able to divorce there, which seems like an unreasonable burden. It is clearly a question of fairness that she be allowed to dissolve the civil union in Florida.

  • 22. JayJonson  |  August 5, 2014 at 6:31 am

    Can you explain why you think an appeals court might disagree? If opposite-sex couples can marry in Vermont, but divorce in Florida, why shouldn't same-sex couples enter into a civil union in Vermont (when they were legal there) and dissolve it in Florida?

    If I recall correctly, Canada had a problem when they did not make provisions for divorce when they offered marriage to same-sex couples from out of the country. A government official created an outrage when he said that couples from outside the country who married in Canada weren't really married because their marriages weren't recognized in the jurisdiction in which they lived and they therefore could not divorce in Canada. I think the problem was resolved when Parliament amended the marriage act, but the remark created an outrage because people were very suspicious of the Harper government, which was opposed to same-sex marriage, but had promised not to revisit the issue during the election campaign that they won. Some people suspected that the official was attempting to revisit the question of same-sex marriage by attacking it from the rear, as it were.

    In 2003, a Texas trial court granted a divorce to two gay men who had entered into civil union in Vermont a year earlier (In the Matter of the Marriage of R.S. and J.A. [2003]). A furor erupted when the press reported this story. The Texas Attorney General intervened to have the divorce set aside, and the Texas Legislature quickly passed a law declaring that no court could recognize a civil union for any purpose, including divorce. At this point the couple moved to have their divorce proceeding dismissed, and the court granted this request. I wonder if the couple ever dissolved their civil union.

  • 23. brandall  |  August 5, 2014 at 6:31 am

    "To begin your Vermont divorce case, you or your spouse must have lived in the state for at least six months. Furthermore, Vermont family law courts will not grant a final decree of divorce until one of you has lived in the state for a period of one year. This means you can file your initial paperwork after six months, but you must wait at least a year before your case is finalized."

    And these are the rules when you can find your spouse. What a nightmare for this woman to have to mount a constitutional challenge to FL marriage laws just so she can move on with her life.
    http://www.divorcenet.com/resources/filing-for-di

  • 24. brandall  |  August 5, 2014 at 7:37 am

    Here is the filing. It raises some very good points. Interesting reading.
    http://www.scribd.com/doc/235858863/60CV-13-2662-

  • 25. brandall  |  August 5, 2014 at 7:46 am

    AZ: Plaintiff's Denied Request for Minimal Damages

    What were the attorney's thinking? They tried to sue for minimal damages against the county clerks. This had nothing to do with collecting court costs when they win. This seems way off the beaten path of ME.
    http://www.scribd.com/doc/235856441/2-14-cv-00024

  • 26. sfbob  |  August 5, 2014 at 7:53 am

    How can it possibly be legal for a legislative body to interfere with the operation of another branch of government this way?

  • 27. brandall  |  August 5, 2014 at 7:56 am

    That my question. It's like jury tampering, but in this case it's the SC judges.

  • 28. debater7474  |  August 5, 2014 at 8:27 am

    Even if the Arkansas Supreme Court were to rule in favor of marriage equality, it would still be appealed to the US Supreme Court because the basis of the ruling would have to be under the federal constitution. Presumably, the decision would be stayed during an appeal to the Supreme Court, just like all the other court decisions where state officials have chosen to contest it.

  • 29. DrPatrick1  |  August 5, 2014 at 8:31 am

    The real nightmare is that she was deprived equality from the get go. Had she been able to marry in VT, she would be able to divorce in FL. (it would still take a court case currently, but that is a legal issue which may be resolving soon for the entire US.)

    When VT was first to offer partner recognition, there were several warnings in our community not to rush to VT to partake, as it could create legal issues in our home states. This scenario was predicted before anyone was "unioning" in VT. I feel bad for the situation this woman is in, but when she agreed to the union in the first place, the divorce rules were the same as they are today.

  • 30. FredDorner  |  August 5, 2014 at 8:41 am

    Although if the judges up for reelection did recuse themselves, it would defacto enact the improper influence which the legislative council intended, and set a very bad standard within the court in regards to future cases and future threats from the legislature.

    The best course of action would be for the court to flip off the legislature via their response to this claim.

  • 31. Ragavendran  |  August 5, 2014 at 8:49 am

    The reasons are essentially the same as what DrPatrick1 has been saying above. It is easy for a court to say that a civil union is not the same thing as a marriage, and Florida does not recognize civil unions for opposite sex couples either, and so this is something that should be fought in Vermont courts. And yes, by this logic, if this were an opposite sex couple, then Florida should still refuse to dissolve the civil union.

  • 32. Ragavendran  |  August 5, 2014 at 8:51 am

    The problem is this:

    "Vermont law provides for dissolving civil unions, which requires both parties to agree and execute requisite forms. Petitioner sought to locate Respondent in order to execute the forms but has been unable to locate her after a diligent search, which included employing a private investigator."

    This clearly seems to indicate that the flaw is with the Vermont law that forgot to think of a situation where one of the parties to a civil union absconded and the other seeks to dissolve the union. I think this issue would be resolved quicker on common-sense grounds if she asked a Vermont judge for the dissolution of her civil union.

  • 33. sfbob  |  August 5, 2014 at 8:58 am

    I assume that many of the state legislators are attorneys. Could the plaintiffs file a complaint against them with the state bar?

  • 34. sfbob  |  August 5, 2014 at 9:00 am

    Yes I agree it would be similar to jury tampering. Or extortion.

  • 35. sfbob  |  August 5, 2014 at 9:11 am

    My presumption is that this is something which would typically be a straightforward application of the Full Faith and Credit Clause (recognition of the judicial acts of other states I believe typically includes matters of family law) were it not for the fact that the state of Florida had acted to impose a limitation of that clause in this particular circumstance.

  • 36. TomPHL  |  August 5, 2014 at 9:49 am

    The ruling does not have to be on the basis of the US constitution. The bill of rights in the Arkansas constitution is unamendable – I believe this is unique in American state constitutions. Judge Piazza found the law unconstitutional under both constitutions. So the state supreme court could declare the ban unconstitutional under the state constitution. How they will interpret the part of the bill of rights that declares that the bill of rights is unamendable is unknown but a decision under the Arkansas constitution is possible.

  • 37. Ragavendran  |  August 5, 2014 at 9:57 am

    En Banc Rehearing denied. Santai-Gaffney has 90 days to file for a cert petition before SCOTUS, her last chance: http://www.scribd.com/doc/235839704/14-3048-Order

  • 38. sfbob  |  August 5, 2014 at 9:59 am

    Some people just don't understand the meaning of the word "No."

  • 39. jjcpelayojr  |  August 5, 2014 at 10:16 am

    I have to think this chess move is genius. By making this request it puts on paper what a lot of dissenting judges have been doing, opining the merits of the case without using case laws to back their claims. In a way, the plaintiffs are letting the judges know to listen to the merits of the case honestly as their job dictates them to do, otherwise, risk being called out for the political pandering they might do to keep their seat.

  • 40. Fortguy  |  August 5, 2014 at 10:19 am

    UPDATE 2: They are still online by searching Scribd for hero petition;.

  • 41. brandall  |  August 5, 2014 at 10:41 am

    Utah AG files for cert with SCOTUS

    I'm surprised, but pleased, they did not wait until the last day.

    http://fox13now.com/2014/08/05/breaking-news-utah

    The filing is at the bottom of the link.

  • 42. Mike_Baltimore  |  August 5, 2014 at 10:53 am

    Indiana has not had 'common law marriages' legally performed in the state since the mid-1950s, but if a couple is legally 'common law married' in another jurisdiction (such as Pennsylvania before the practice was banned there in the early 2000s), Indiana recognizes the common law marriage as legal for all purposes of marriage (inheritance, child welfare [including insurance], schooling, taxes, etc.).

    When my second step-father died in 2004, I met several couples who had been common law married in Pennsylvania before it was banned in the state, then they moved to Indiana. They were treated as married in Indiana, even though it had been about 50 years since such marriages were allowed to take place in the state of Indiana.

    The philosophy of Indiana on heterosexual marriage – if it was legal where performed, it is legal in Indiana. I wish that was the philosophy for all marriages, not just heterosexual marriage, though.

  • 43. brandall  |  August 5, 2014 at 10:59 am

    She has grossly exceeded her 15 minutes of fame.

  • 44. DoctorHeimlich  |  August 5, 2014 at 11:03 am

    On page 18, Utah has a new argument for why Baker is binding precedent: because Thurgood Marshall was on the Supreme Court when it dismissed the case.

    We're now just one step away from "you should rule for us because reasons."

  • 45. Bruno71  |  August 5, 2014 at 11:06 am

    Exactly. It's unrealistic to expect this woman to keep traveling back and forth to Vermont to try and undo this predicament she's in, when the state in which she resides should be allowing her to do so there. And they would, if it weren't for their discriminatory policy, which the judge has correctly agreed is unlawful.

  • 46. brandall  |  August 5, 2014 at 11:07 am

    VA – Bostic: attorneys file motion to drop the stay

    While we've seen this scenario at least 28 times before, this is Boies and Olsen. I would not take any bets, but I wonder if they have interpreted the likelihood of success for the stays in a manner similar to what we discussed here on EOT.

    If anyone can find their filing, it would be appreciated. We would be looking for some new, novel argument other then the Supreme Court stayed Kitchen.
    http://www.newsplex.com/home/headlines/Plaintiffs

  • 47. debater7474  |  August 5, 2014 at 11:10 am

    Lol how can you declare a piece of the constitution unconstitutional?Just seems like a strange situation to me, but hey if it brings us a win i'm all for it.

  • 48. Bruno71  |  August 5, 2014 at 11:12 am

    They key difference is that the opposite sex couple, in 2002, had the option of being married in Vermont, while the same-sex couple did not. The same-sex couple did not have a marriage option anywhere in the nation in 2002, in fact. And now one half of that couple can't undo it properly because of the way Vermont law is written in addition to Florida's marriage/CU ban. She chose to deal with it in Florida court because it's where she resides. I think it's a perfectly reasonable complaint to a Florida court, asking for a perfectly reasonable judgment, which was given.

  • 49. Bruno71  |  August 5, 2014 at 11:16 am

    Yes, but who in their right mind reading those rules would think "my partner is going to abscond in a few years, making it nearly impossible for me to dissolve the union?" We can't really be putting the onus on her choice here, can we?

    I think since Florida included the concept of civil unions in their marriage ban, that is a tacit acknowledgment that civil unions exist in parallel to, or in mimicry of, real marriage. The amendment treated marriages and civil unions equally, so either concept should be treated equally by a Florida state court.

  • 50. Bruno71  |  August 5, 2014 at 11:19 am

    I just don't get it…she's going to ask SCOTUS to force the 3rd Circuit to hear it en banc? That's just a weird request.

  • 51. TomPHL  |  August 5, 2014 at 11:20 am

    It is strange. The Arkansas constitution is on line check it out and see if you think I am mistaken.

  • 52. DoctorHeimlich  |  August 5, 2014 at 11:27 am

    Here ya go:
    http://www.scribd.com/doc/235816974/14-1167-241

  • 53. Randolph_Finder  |  August 5, 2014 at 11:28 am

    So if Scalia or Alito would like to step down so that Obama can nominate a Homosexual on the day after Kitchen is upheld, I'd be glad to take that…

  • 54. TomPHL  |  August 5, 2014 at 11:32 am

    Has this been done before? Is she just trying to prove to God that she should skip purgatory and go straight to heaven? Just when you think things have gotten as weird as they can Louis Gohmert or this lady prove you wrong.

  • 55. debater7474  |  August 5, 2014 at 11:35 am

    No, I believe you. It just makes my head spin lol.

  • 56. DaveM_OH  |  August 5, 2014 at 11:38 am

    Start the clock! Brief in Opposition and any amici due on 9/4, Reply brief due on 9/14. Ready for distribution by 9/18, first heard on the October 10 Conference.

  • 57. Randolph_Finder  |  August 5, 2014 at 11:39 am

    What I don't understand is why she would be better off in a state that allowed SSM. Let's say she was in New Mexico, a state that has Marriage Equality and (as far as I can tell never had CU/DP). The divorce laws in New Mexico apply to two people who are married and would equally apply to a Same Sex or Opposite Sex couple. Wouldn't she *still* be in a situation of having to have a judge force something that the State wouldn't allow?

  • 58. sfbob  |  August 5, 2014 at 12:00 pm

    One thing I should have noted is that the judge's decision notes that the plaintiff has lived in Florida for 14 years. So clearly she and her former partner traveled to Vermont in order to obtain a civil union there at a time when Vermont was virtually the only state in the union to convey any legal status to same-sex relationships. It would be, I think, inappropriate to suggest that she and her partner "evaded the laws of her home state" any more so than Edith Windsor and Thea Spyer did when they traveled to Canada to marry in 2007.

  • 59. sfbob  |  August 5, 2014 at 12:03 pm

    I agree wholeheartedly with you. I can't understand why others seem to feel her attempt at a solution is unreasonable. If she were half of a heterosexual married couple under the same circumstances and couldn't locate her ex, she'd do the same thing and would probably be successful without any laws having to be challenged.

  • 60. brooklyn11217  |  August 5, 2014 at 12:05 pm

    I don't think the VA plaintiffs filed a motion to drop the stay. I think that the Monday filing was just in opposition to extending the stay that the clerk wants.

    Here is the filing from Monday, on Scribd thanks to @EQCF.
    http://www.scribd.com/doc/235816974/14-1167-241

  • 61. sfbob  |  August 5, 2014 at 12:06 pm

    I do think you're correct here Bruno. The fact that Florida went out of its way to include civil unions in their marriage equality ban indicates a presumption that the courts would otherwise be expected to treat them the same way as they treat marriages.

  • 62. brooklyn11217  |  August 5, 2014 at 12:14 pm

    Surprised but pleased as well. Skipped to the end, and they give reasons why they want their case over others, including Bostic. Someone in Utah is hoping for their big SCOTUS chance….to either go down in history as a big loser, or to become the hero of the anti-equality bigots.

  • 63. andrewofca  |  August 5, 2014 at 12:16 pm

    Re-list, hold, relist, hold…

  • 64. sfbob  |  August 5, 2014 at 12:23 pm

    Apart from that there is this charmer on page 3:

    "…the Tenth Circuit held that there is a fundamental right to marry someone of the same sex." Setting aside the grammatical infelicity of that statement, that is of course NOT what the Tenth Circuit held. The court didn't find a new right; it held that a law which prohibited a person from marrying the person of their choice, regardless of the gender of the persons involved, is unconstitutional just as it would be to prevent a person of one race from marrying a person of a different race.

    Though to give them their due, I have to agree with their statement at the bottom of page 4:

    "It comes down to this: [either] thousands of couples are being unconstitutionally denied the right to marry or millions of voters are being disenfranchised of their vote to define marriage. Either way the Court's review is necessary and this case is the right vehicle to do so."

    I don't think it should surprise anyone for me to assert that our constitutional right to marry trumps the rights of voters; this is of course the purpose of having fundamental rights…they are not subject to a popularity contest.

  • 65. Bruno71  |  August 5, 2014 at 12:30 pm

    Memories of Hollingsworth. That seems like 10 years ago now.

  • 66. andrewofca  |  August 5, 2014 at 12:53 pm

    Page 19… another classic.

    "this Court summarily dismissed the appeal “for want of a substantial federal question.” That dismissal “prevent[s] lower courts from coming to opposite conclusions,”
    absent some new doctrinal development. Hicks v. Miranda, 422 U.S. 332, 344 (1975)."

    They brazenly cite Hicks & doctrinal development, and toss it aside. It's like time stood still for the last 40 years for these guys.

  • 67. ebohlman  |  August 5, 2014 at 1:19 pm

    Well a constitution normally specifies the process for amending it, so it's not that strange to have a provision saying "these parts can't be amended; if you want to change them, you have to call a constitutional convention and write this provision out."

  • 68. RLsfba  |  August 5, 2014 at 1:26 pm

    Indiana First Responders sign brief in support of ME
    http://www.lgbtqnation.com/2014/08/more-than-100-

  • 69. StraightDave  |  August 5, 2014 at 1:51 pm

    Maybe it's just me, but I'm getting a little tired of the word "disenfranchised" being tossed around as if it's some inherently evil thing. It's just a scare word to get people's defenses up. We are all disenfranchised from approving an official state religion or cancelling freedom of the press. Just because the Constitution imposes some restrictions on voters, doesn't mean that is a horrible crime that should not be tolerated.

  • 70. brandall  |  August 5, 2014 at 2:00 pm

    Florida-another win and the fourth ruling in a row. Palm Beach ruling is in.

    This is the case of a couple where one spouse passed away. The couple was married out of state.
    http://www.eqfl.org/sites/default/files/palmbeach

  • 71. StraightDave  |  August 5, 2014 at 2:02 pm

    They don't trust anybody else to be as blindly bigoted, go-down-with-the-ship as their homeboy, true-believer attorney.

  • 72. SethInMaryland  |  August 5, 2014 at 2:11 pm

    wow, that's great, i hope the florida supreme supreme court will expidite so we can get a faster victory in Florida,

  • 73. brooklyn11217  |  August 5, 2014 at 2:53 pm

    Here was the filing today…too many parties and too much good news to keep track of:
    http://www.scribd.com/doc/235970464/Virginia-Marr

    News reports also state that VA AG will file cert petition this Friday…the race to the courthouse. Utah vs. Virginia.

  • 74. JayJonson  |  August 5, 2014 at 3:12 pm

    This is a very interesting case. The Attorney General did not bother to defend it. The Judge seems very commonsensical. It is absurd that Florida's marriage laws would prohibit the appointment of a same-sex spouse as a personal representative of their will. I wonder if the Attorney General will now decide to appeal.

  • 75. sfbob  |  August 5, 2014 at 3:21 pm

    "So no court can ever come to a different conclusion" is apparently how the view Baker.

  • 76. sfbob  |  August 5, 2014 at 3:25 pm

    Indeed. We don't get to vote on fundamental rights, so nobody's being disenfranchised.

  • 77. Mike_Baltimore  |  August 5, 2014 at 3:59 pm

    A number of years ago, a Muslim woman (not the first wife of her husband) wanted a divorce. She applied for one in Iowa (I believe – not sure why she chose the state, maybe it was the closest state with 'non-complications' [residency requirements, etc.).

    At first, the courts in Iowa said that since Iowa didn't recognize multiple simultaneous marriage, the state couldn't allow the divorce. Finally, the state's Supreme Court ruled that divorce is divorce, and thus allowable in the state if the marriage was legal at the time and place it was performed, as long as the state's divorce laws were followed.

  • 78. Jen_in_MI  |  August 5, 2014 at 4:24 pm

    Cue NOM's litigation department – "Bullying LGBT supporters! How dare they arrange for these bigots' names be public record??!" Their outrage has really begun to amuse me, similar to a toddler's tantrum at not being able to reach a favorite toy.

  • 79. Jen_in_MI  |  August 5, 2014 at 4:40 pm

    This is ADF's merry-go-round, and dear Theresa has promised to stay on until the ride comes to a complete stop. LOL

  • 80. Jen_in_MI  |  August 5, 2014 at 4:45 pm

    I thought the same thing – what an absurd position to take! They've proven now that time stopped for the bigots in 1972. Just…wow.

  • 81. Jen_in_MI  |  August 5, 2014 at 4:47 pm

    I dearly wish this ruling were not limited to one person. Cases like this frustrate me, but I understand why the plaintiff didn't want to chance broadening the scope.

  • 82. sfbob  |  August 5, 2014 at 5:00 pm

    I know, huh?

    If there's "no substantial federal question" then what does one call it when a legally-contracted marriage suddenly disappears when you cross a state line?

  • 83. Mike_Baltimore  |  August 5, 2014 at 5:01 pm

    Broward County is in South Florida, and hundreds of miles from the nearest state allowing ME. And how many more miles to get to a state that allows ME AND doesn't have requirements that can't be easily met (Maryland, for example, has residency requirements, depending on where a spouse to be divorced lives, that range from 30 to 90 days, or more. Other states have varying residency requirements.)

    Why should anyone be forced to travel hundreds of miles to do something that their next door neighbor can accomplish just by going to the court house in the county in which they reside?

  • 84. SeattleRobin  |  August 5, 2014 at 5:03 pm

    The difference is that a marriage divorce is available in every state, because marriage is available in every state. So the only barrier is recognition of the marriage, which is a legal status existing in Florida. But in this case the court was being asked to dissolve a civil union, which is a legal status that doesn't even exist in Florida.

    We all know the reasons for why civil unions exist, etc. But looking at the big picture here, not specifically gay rights, is it appropriate to force a state to deal with the legal issues that originate in and only exist in another state? It goes to the whole states as laboratories thing.

    This isn't a good analogy, but kinda demonstrates what I mean. Recreational marijuana is legal in my state. It's an experiment which other states are watching. But if I go down to Oregon with pot in my pocket I can't expect that state to recognize my legal status in Washington.

    I really do think that the states that created these novel domestic arrangements should be on the hook for dealing with all aspects of them, not states which have no such arrangements. The states with DPs and CUs need to update their laws in order to deal with the problem, even when the parties are now living elsewhere. Washington did this by eliminating DPs as a legal status and converting them to marriages.

  • 85. Mike_Baltimore  |  August 5, 2014 at 5:12 pm

    And the US Constitution went even further – it specifically prohibited any change to the allowance of the importation of slaves after the Constitution was adopted (in 1788) until 1808 (Article 1, Section 9, first paragraph).

  • 86. SeattleRobin  |  August 5, 2014 at 5:25 pm

    I haven't read the links yet, and maybe Florida law is different, but in Washington you aren't required to name a relative or spouse. If the effect of the Florida marriage ban is that the two people are considered legal strangers, that should still not have any implication for an executor of a will.

    It's like that Nebraska driver's license situation. The marriage bans are being stretched as a means to discriminate into other legal areas that don't even require valid marriages.

  • 87. Mike_Baltimore  |  August 5, 2014 at 5:27 pm

    So if Baker is valid, then how and why did SCOTUS have a multitude of cases to choose from in late 2012, and rule on two cases in June 2013, one on the merits and one on standing issues?

    Wouldn't the cases all have been thrown out at the District Court level, and the Appeals Courts have agreed with the District Courts? If the cases had been thrown out, the cases would almost certainly not have reached SCOTUS. That several District and Appeals Courts did NOT throw out cases is VERY indicative that there have been developmental changes since Baker.

  • 88. brandall  |  August 5, 2014 at 5:31 pm

    Please read the 1,000's (or it seemed like) of comments on the cake maker case from last Wednesday, Thursday and Friday's blogs. I still twitch when we get back into this case…over and over and over again.

  • 89. andrewofca  |  August 5, 2014 at 5:37 pm

    "These are not the arguments of serious people."

  • 90. andrewofca  |  August 5, 2014 at 5:44 pm

    Ya know, brandall, I just now finally got your "cake maker" reference. LOL! I saw your original comment on the boycott of the cases original name, but it never registered until now.

    I've got to go back and upvote that comment….

  • 91. SeattleRobin  |  August 5, 2014 at 5:46 pm

    I don't know how many judges are on the court, but couldn't the recusal request potentially apply to all of them? Who would be left to decide the case? Or what if there were only one or two judges not ever planning to run again? Whatever decision they came up with would be weak, due to the lack of the full court.

    I understand the importance of the points the plaintiffs are making, but this seems as dangerous to the integrity of the court as the legislative action does.

  • 92. brandall  |  August 5, 2014 at 5:47 pm

    For some unknown reason, I have subconsciously lost all interest in eating cookies, cakes, cupcakes and bread over the last 3 days.

    [reposted from last Friday night]

  • 93. brandall  |  August 5, 2014 at 5:55 pm

    I agree. There are 7 sitting judges elected in a non-partisan election for eight-year-long terms that are staggered to make it unlikely that the entire court would be replaced in a single election. Any vacancy caused by a Justice not finishing his or her term is filled by an appointment made by the Governor of Arkansas. [wiki]

    If I remember Iowa correctly, it also had a rotational election and that is how the 2 supporting ME judges were not re-elected.

    It's the actions of the Legislature that caused the motion to be filed. This would be a fascinating case in itself if it weren't in the middle of our ME push.

  • 94. Mike_Baltimore  |  August 5, 2014 at 5:59 pm

    This is getting real interesting – all the cases start with Monroe County (the county Key West is located in), and go up the Atlantic Coast. After the ruling in Monroe County, we had a similar ruling in Miami-Dade County, then Broward County, now Palm Beach. What county is just North of Palm Beach County (isn't it Martin?), and does it have any pending ME cases?

  • 95. SeattleRobin  |  August 5, 2014 at 7:20 pm

    I just read the order and you're right that it's interesting. Apparently under Florida law only a spouse or close relative can be appointed as personal representative when it involves non-residents. (The couple resided in Pennsylvania, but owned property in Florida.)

    For those not wanting to read it, the challenge is an as applied case, not facial. Meaning the man was challenging not the general constitutionality of the marriage non-recognition ban, but challenging the constitutionality of how it was being applied to him specifically in not allowing him to be appointed the personal representative by the court, which is normally a routine matter for straight marriages.

    The judge went through a lot of the usual stuff, though in an abbreviated manner. The interesting part to me was that he pointed out that the state hadn't offered any reasons for not allowing the appointment, and that the reasons proffered in support of bans in other states weren't relevant to the specifics of this case about an estate.

    Reading between the lines, he was basically saying that state interests in procreation aren't relevant to executing a will based on the decedent's clearly expressed wishes.

  • 96. DrPatrick1  |  August 5, 2014 at 7:25 pm

    It is not a judgement against these women, but yes, just like Windsor and Spyer, these women evaded the unconstitutional laws of their state to obtain legal recognition elsewhere. It was widely known at the time that no other state had such a legal arrangement

  • 97. DrPatrick1  |  August 5, 2014 at 7:28 pm

    It is indeed a shame. It is a shame that these women needed to leave their state to obtain any legal recognition due to unconstitutional discrimination. However, that unfortunate reality does not change the fact that what these women have was never intended to be marriage, and FL should not be held responsible for what happened in VT.

  • 98. DrPatrick1  |  August 5, 2014 at 7:30 pm

    Indeed.

  • 99. Rick55845  |  August 5, 2014 at 7:32 pm

    My husband and I did that too. We live in Texas, but we traveled to Albuquerque New Mexico to get married a few months ago. We've wanted to do that anyway for the past 21 years, so it was an action long past due. So we're evading Texas' unconstitutional laws. I can't see a problem with that. It finally, because of Windsor, gives us recognition at a federal level, at least. Recognition by Texas soon to follow (albeit with ill grace, kicking and screaming), I have no doubt.

  • 100. DrPatrick1  |  August 5, 2014 at 7:35 pm

    No, no, her request in FL is not unreasonable. Perhaps the tone of my comments is being misunderstood.

    As she lives in FL it is quite reasonable for her to seek assistance there. However, her contract is with VT, with no applicable law in FL. I am quite glad the judge is trying to help this woman, and it does seem to be a good outcome.

    My concern is that while the judge is trying to "do the right thing" it is not apparent to me that this action is a legal one. It seems that an ambitious AG could fight this, and easily win. I am glad that the future of ME does not rest on this case.

  • 101. SeattleRobin  |  August 5, 2014 at 7:41 pm

    I'd like to go on record as supporting lifetime appointments to higher courts. That setup has some obvious problems, like being stuck with Clarence Thomas for an eternity. But it seems to me the problems with periodically elected judges are even worse.

    They are more susceptible to pressure from things like this BS from the legislature or the actions of ignorant and outraged voters. And just as important, the electorate is clueless in their voting to start with.

    I consider myself to be fairly intelligent, but most of the time I have no idea who to elect to my state supreme court. And that's true for most voters. The judges are elected by only a tiny fraction of the voters in this state. The only time I vote is when my sister, a lawyer, points put someone who is particularly good.

  • 102. DrPatrick1  |  August 5, 2014 at 7:42 pm

    But common law marriage just describes how the marriage was entered into. The marriage itself is no different from other marriages, so it should not be recognized any differently. Notably you can have a legal civil marriage performed by a judge, a magistrate, a minister, a justice of the peace, etc, yet you still have the same thing, a marriage.

    This is why the word marriage is so important and why we never could settle for civil unions, domestic partnerships, or any other second class status. We are not fighting for same sex marriage, but simply for marriage. Rose has argued that point at great length.

  • 103. DrPatrick1  |  August 5, 2014 at 7:48 pm

    Her next door neighbor could not ask the state of FL to dissolve a civil union.

    She willingly traveled hundreds of miles to enter into a union that could not be dissolved without her coming back those hundreds of miles among other requirements.

    You are arguing that it is unfair to put this burden on her now. I am saying the burden was always there and she willingly chose it. Further, the unfairness is not how she is treated now, as no one in FL gay or straight can dissolve their civil union when one partner abandons the scene, but in how she was treated when she entered into the civil union in the first place, the mere fact that she could not have chosen to marry then!

  • 104. DrPatrick1  |  August 5, 2014 at 8:26 pm

    Congrats to you and your husband. And yes, you evaded the unconstitutional discrimination of TX.

    Ironically, my husband and I bought tickets last year right after the Windsor and prop 8 rulings to SF, from Albuquerque, in order to evade the laws in NM and get married in CA. Due to work schedules, we flew the family out for Labor Day weekend and got married. Ironically, some counties in NM were marrying couples by that time, and soon after the NM SC ruled unanimously that ME already existed in NM so no evasion was necessary. We ended up with a ginormous airfare bill, rental house and cars, and we could have stayed home and paid like $40 and had a grand party.

    I am sensitive to the desire to wed and achieve equality even evading discrimination for even a tiny slice of the equality pie.

  • 105. Jen_in_MI  |  August 5, 2014 at 10:06 pm

    I'd upvote this 10 times if I could for how much it makes me laugh!

  • 106. Ragavendran  |  August 5, 2014 at 10:31 pm

    Well, after four state courts, I think its about time we heard from a federal court. Hear that, Tallahassee? (Switching to west Florida for a change.)

  • 107. sfbob  |  August 5, 2014 at 10:54 pm

    It's easy enough to misconstrue tone on a blog; certainly far more so than in a face-to-face conversation (of course those can go wrong as well). And it's easy enough to get more worked up than really is necessary in the course of an on-line discussion.

    I'm as happy as you are that the future of marriage equality cases does not (well, as far as we know it does not) rest on this case.

    It does seem to me that in this case as in so many others, the fault doesn't so much lie with the plaintiff as it does with the state.

    Under ordinary circumstances this situation would appear to involve nothing more than a rather straightforward of either the Full Faith and Credit Clause or the Privileges and Immunities Clause or possibly of both. The state of Florida took it upon itself to disturb what should be normal application of either or both by adopting a public policy that creates that disturbance. At the very least there should be some legitimate reason afforded for having taken that step and the refusal to recognize civil unions on the same basis as the state might recognize, for example, a common law marriage that had been legally recognized in one of the few remaining states where such marriages are granted recognition.

  • 108. SeattleRobin  |  August 6, 2014 at 1:50 am

    I think there's an important distinction between people going out of state or country to marry, and going out of state to get a piece of paper that only has meaning in the state issuing it.

    Gay couples going to another state to marry are gaining a status understood and existing in all states, even if some states don't recognize them legitimately having that status. And even in the early days, it was not an unrealistic hope for the marriage to eventually be recognized elsewhere. Ever since Hawaii and Massachusetts, I think it has always been a matter of when, not if. (Even though for many the when still wasn't in their lifetimes.)

    But going to another state to obtain a status that is recognized nowhere else always seemed foolish to me. Even later on when more states offered DPs and CUs, most didn't recognize them from other states, because they were often quite different.

    I'm not saying the women shouldn't have done it. If it made them happy at the time, more power to them. But it was always a kinda risky proposition. And I don't see strong arguments for why a different state must take on the burden for the choice made by that couple.

  • 109. Randolph_Finder  |  August 6, 2014 at 7:23 am

    What I'm saying is that given that Civil Unions are a special concept, New Mexico's laws aren't any more set up to dissolve one than Florida's. *Neither* has any law on how to dissolve them.

  • 110. Randolph_Finder  |  August 6, 2014 at 7:24 am

    Thank you for helping to reexpress this.

  • 111. RnL2008  |  August 6, 2014 at 7:33 am

    Some folks simply just can't help themselves and she's DEFINITELY in that position………I believe her lawyers should be fired and debarred as they keep filing these frivolous appeals!!!

    Stupid should hurt!!!

  • 112. Randolph_Finder  |  August 6, 2014 at 7:51 am

    Yes, Martin,
    No, I can't find any Pending ME cases.

  • 113. brandall  |  August 6, 2014 at 7:59 am

    There ARE pending cases. As Ragavendran pointed out, there is the Tallahassee case, Brenner v. Scott in the Federal District court. This is ME and out-of-state recognition. Final briefs were filed 5/27 and we are waiting for that decision.

    Then there is Dousset v. Florida Atlantic University filed in state court. It is about obtaining in-state tuition rates for a married spouse. Final optional briefs were filed 6/23/14 and we are waiting for that decision.

  • 114. JayJonson  |  August 6, 2014 at 9:32 am

    I am surprised by the negativity regarding this decision. I understand and agree with the cogent points you and others make about a civil union not being a marriage and how Vermont is responsible for not making clearer how to dissolve a civil union, etc.

    But the decision itself seems to me a commonsensical solution to a genuine problem. The plaintiff wants a divorce, but she is prohibited from getting that divorce because of Florida's refusal to recognize her civil union as the equivalent to marriage. The judge says that Florida's marriage laws are unconstitutional because they violate the full faith and credit clause and they deny the plaintiff equal protection of the law.

    This seems quite similar to the decision regarding probate from Palmdale County. There the judge points out that Florida has this weird law that says only a spouse or close relative can serve as a personal representative for disposing of Florida property held by an out-of-state resident who is deceased. The deceased person's spouse cannot be recognized because of Florida's marriage laws. The solution: declare the marriage laws unconstitutional.

    In that case, I suppose the judge could have said that the problem was with the law requiring the personal representative to be a spouse or close family member and struck down that law. But surely the more direct way to achieve justice would be simply to recognize the man's spouse as his spouse, and that is what he did.

    These cases illustrate the mischief done by Florida's marriage laws even in ways that were not specifically intended. I think the judges did what was necessary even if the rulings themselves may not necessarily be elegant.

    Unless I missed something, the Attorney General did not intervene in either of these cases. I can understand why.

  • 115. Mike_Baltimore  |  August 6, 2014 at 11:21 am

    'brandall'

    What you wrote is all fine and good, except my question was extremely specific (and didn't have to be grammatically diagrammed for anyone to figure out what was being asked). I was not asking about ME cases other than in Martin County, and ONLY about Martin County.

    ". . . does it [Martin County] have any pending ME cases?"

    Does it, or doesn't it? You responded all around the bush, but didn't respond directly to the question asked.

  • 116. StraightDave  |  August 6, 2014 at 11:38 am

    C'mon, Mike. Give it a rest. 1) Read. 2) Think. 3) Argue if you have a valid point that's also useful.
    Randolph_Finder answered your question. In light of that, brandall followed it up with the next best thing that did exist.

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