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Florida couples challenge same-sex marriage ban in federal court

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Another same-sex marriage lawsuit has been filed in Florida, this time in federal court, and specifically challenging the state’s non-recognition of same-sex marriages performed in other states or countries. The plaintiffs, James Brenner and Charles Jones, live in Tallahassee and were married in Canada in 2009. The couple’s marriage isn’t recognized in the state because of a provision in the state constitution, as well as statutory provisions. They’re asking a federal judge in district court in the Northern District of Florida to strike down the non-recognition provisions on due process and equal protection grounds.

These provisions, the complaint alleges, “impose restrictions and disabilities on same-sex couples”, “are motivated by a desire to harm a politically unpopular group”, and “serve the impermissible purpose of enforcing and perpetuating sex stereotypes by excluding plaintiffs from being recognized as validly married because plaintiffs have failed to conform to sex-based stereotypes that men should marry women, and women should marry men.”

There are other claims, based on the Supremacy Clause and the Establishment Clause.

This case, Brenner v. Scott, is the second filed in recent months challenging Florida’s treatment of same-sex marriages. The National Center for Lesbian Rights filed Pareto v. Ruvin in state court in January. That case challenges only Florida’s ban on same-sex marriages itself, not the state’s refusal to recognize same-sex marriages performed elsewhere.

Thanks to Kathleen Perrin for this filing


  • 1. ragefirewolf  |  March 7, 2014 at 11:43 am

    Not really sure how the Supremacy Clause fits into all of this

  • 2. sfbob  |  March 7, 2014 at 1:08 pm

    Without having read the argument (I suppose I really should) I am guessing it come down to something like: if, per Windsor, the federal government must recognize same-sex marriages legally performed, each state should need to do so as well.

  • 3. Eric  |  March 7, 2014 at 2:37 pm

    The First and Fourteenth Amendments, as well as treaties with Canada, take precedent over Florida law?

  • 4. grod  |  March 8, 2014 at 9:14 am

    Eric in all the briefs etc that I've read, I do not recall any mentioning the right to travel, and to relocate. You mention treaties. Has the USA become a party to the Hague Marriage Convention which came into force 1991?
    In February 2008, in Martinez v Monroe County, the Appellate Court of New York established that a same-sex marriage performed in another jurisdiction must be recognized by the State. The coupled had married in Ontario. It was the first U.S. court decision to require such recognition. In May 2008, the Governor directed state agencies that same-sex couples married elsewhere "be afforded the same recognition as any other legally performed union.”

  • 5. Eric  |  March 9, 2014 at 4:11 pm

    The U.S. has long recognized Canadian marriages, what specific treaty is left as an exercise for the reader.

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  • 9. Cesario  |  May 13, 2014 at 6:17 pm

    I am a proud gay journalist, originally from Brazil and an American citizen, living in the USA for more than 20 years.

    Sooner after the Supreme Court struck down DOMA last year, my partner and I wasted no time and finally got married in the State of New York, where we both lived for seven years prior to purchasing a home and establishing residency in Florida, early in 2013. We are now faced with a new challenge:

    My husband entered the USA in 2006 as a visitor to donate his kidney to me. The transplant underwent successfully and he maintained his immigration status legally on a F-1 visa, until we got married in August, last year. He has since received his Employment Authorization Card and we are both waiting for the next immigration steps with USCIS.

    In the meantime, he continues to attend college at MDC, where he is pursuing a career in healthcare, taking Paramedics classes for a year. The school certainly has that information and easily access their system to prove it. The property in Florida was purchased under my name, the utility bills cannot have two names on them, according to the utility company’s policies, and the car registration is also under my name only, with Mauro being designated a second driver for insurance purposes.

    The problem is that, based on Florida’s classification of "Residency for Tuition Purposes,” MDC will not consider my partner as "a FLORIDA resident” and therefore he will need to pay a full tuition as a non-resident. MDC argues that our marriage cannot be documented because, as many of you may know, the Sunshine State does not recognize same-sex unions. The information was provided by Rodney Escoto, MDC’s Student Services Assistant, and confirmed by his Administrative Supervisor, Ms. Jocharine Delorme and also by Financial Aid Director, Lily Lindo.

    Surprisingly, the Legal Editor at Division of Statutory Revision from the Government of Florida, Mr. Arnold Cooperman, said on a telephone conversation with me this week that such issue “is up to the courts to decide."

    Not only can this situation create additional financial burden for our family — I am disabled and receiving Social Security benefits — but also create an obstacle for my partner to attain further education from one of the state’s public institution. A problem not faced by “traditional married” couples and other residents.

    Clearly, the State and the schools’ compliance are discriminating against our relationship — and potentially many other residents — by charging them higher out-of-state tuition as non-resident students simply because their “spouses” are of the same-sex. I am a law-abiding American citizen and a Florida resident and this should be enough to prove residency in Florida if we were “straight” (according to Florida’s Determination of resident status for tuition purposes (FS 1009.21).

    We believe that classifying such students according to their spouse’s sex orientation violates the fundamental rights, dignity, and equality guaranteed to all persons by the United States Constitution. This policy should not be a roadblock for a dedicated student who may very well be saving lives in the same state that denied him affordable education.

    We also believe that we cannot be silent. We must step up to protect our family and challenge the law in our state. Being denied the dignity and protections that marriage provides is simply inhumane. We have got our marriage license. We are a step closer to have my husband granted his permanent residency in the U.S as well, and now, having to face the humiliation of being denied a State “residency for tuition classification” is not fair at all. We seek a reasonable explanation why aren’t we permitted to be treated the same way many of my partner’s married classmates’ are.

    We are certainly willing to join other groups that are currently seeking injunction directing the state to recognize same-sex marriages that took place in other states. We are aware that there are many other benefits currently not available to surviving spouses in same-sex marriages and we are ready to take this further if necessary.

    Also, we understand that many organizations, including Equality Florida and the National Center for Lesbian Rights have also teamed up to challenge Florida’s gay marriage ban in Florida courts. We have also learned that ACLU-Florida is representing a group of other six or eight same-sex couples in a litigation against the state at the Supreme Court for similar reasons, that is, Florida not accepting same-sex marriages from other states. We should unite for equality in this country.

    We are hopeful because there are thousands like us facing similar problems. We would be happy to join other discriminated gay couples, considering that in Florida, a broad legal coalition has already been formed. The law firm Carlton Fields Jorden Burt, the attorney Mary B. Meeks and the National Center for Lesbian Rights legal director Shannon Minter are together in a motion that also challenges the "state law" where it bans same-sex marriage, both in statute and in the constitution, can make this case even stronger.

    I am sure the State laws and or provisions banning same-sex marriage will soon be struck down just as well. It is about time.

  • 10. Equality On TrialIndiana,&hellip  |  August 7, 2014 at 12:45 am

    […] to recognize same-sex marriages performed outside the state, while a Florida-based law firm has filed a federal challenge to that state’s ban. The National Center for Lesbian Rights (NCLR) has filed its own case in […]

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