JURIST Guest Columnist Judith E. Koons of Barry University School of Law situates in constitutional history the recent case by Florida same-sex couples, arguing that it is part of a compelling period in our nation’s history that is likely to lead to marriages of same-sex couples to be recognized in every state …

In Pareto v. Ruvin [PDF], six same-sex couples and Equality Florida Institute are challenging Florida’s constitutional and statutory provisions that prohibit marriage for same-sex couples. The case is part of an extraordinary moment in our nation’s constitutional history, in which same-sex couples across the US are seeking the freedom to marry.

This watershed moment was unleashed on the last day of the Supreme Court’s session in 2013 when the court issued its opinion in United States v. Windsor, striking down the one-man, one woman definition of marriage in the Defense of Marriage Act. In Windsor, Justice Kennedy found that DOMA violated the liberty interest of the Fifth Amendment because “the avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma” upon lawful same-sex marriages.

The Florida case embraces Kennedy’s reasoning to contest the constitutionality of the state’s marriage laws. According to the complaint, each of the couples wishes to publicly declare their love and commitment to their chosen partners and to share in the protections, benefits and security of marriage. Yet, Florida’s constitutional and statutory scheme categorically excludes them from marriage, which undermines their life goals, disadvantages them financially and (quoting Windsor) denies them “dignity and status of immense import.” Noting that four of the couples are raising children, the Florida Plaintiffs assert that they are stigmatized in ways that (again quoting Windsor) not only “humiliates” the children but also “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community.”

Florida’s case reflects the significance of the right to marry, both in terms of its constitutional underpinnings as well as its singular importance to individual couples and their children. In constitutional history, Windsor opens the door for same-sex couples to be lawfully married in every state and points the way for other courts to consider the interplay between the content of constitutional rights and their far-ranging effects on couples’ lives.

This time and place for the freedom to marry of gay and lesbian couples is the latest chapter in the history of our Constitution, which the Supreme Court has described as “the story of the extension of constitutional rights and protections to people once ignored or excluded.” As Windsor points out, most citizens did not even consider the possibility of marriage between persons of the same sex until recently. In 1993, the Hawaii Supreme Court ruled [PDF] that the state’s gay-marriage ban was discriminatory. Two phenomena came on the heels of that decision. The first was one of panic, in which elected officials reacted to fears that the traditional and religious basis of marriage was being threatened. In an atmosphere of homophobic hysteria, twenty-seven states passed anti-gay-marriage legislation and Congress enacted DOMA. When the Massachusetts Supreme Court ruled in 2003 that the exclusion of same-sex couples from marriage violated the state’s constitution [PDF], another wave of homophobia seized the nation, resulting in thirty-one states passing constitutional amendments defining lawful marriage as between one man and one woman.

The Hawaii and Massachusetts decisions triggered a second phenomenon, characterized by an evolution of thought or, according to Kennedy, “the beginnings of a new perspective, a new insight” on marriage equality. In the US this insight has steadily grown to a recognition that limiting lawful marriage to heterosexual couples is “an unjust exclusion.”

Consequently, a host of state courts and legislatures has joined in rectifying the injustice of the marriage bans. As of the date of this commentary, seventeen states and DC have legalized marriage for same-sex couples through court decisions, legislation or popular votes. In addition, gay and lesbian couples across the US have filed over forty-five cases in state and federal courts, claiming that the marriage laws of their states are violating state and federal constitutional rights.

That Windsor has opened the door to striking down state laws prohibiting same-sex marriage is demonstrated by six recent federal court decisions. Following Windsor, all of the federal courts that have been presented with the issue have upheld the marriage rights of same-sex couples. As of this commentary, federal district courts have stuck down restrictive marriage laws in Utah [PDF], Ohio [PDF], Oklahoma [PDF], Kentucky [PDF], Virginia[PDF] and Texas[PDF]. These cases were brought by same-sex couples to claim the right to marry in their state or to require their state to recognize validly performed same-sex marriages in other jurisdictions. In all of these cases, the courts found that there was no rational basis for the marriage bans&#8212literally no connection to a legitimate governmental purpose. Furthermore, a number of the courts suggested heightened scrutiny to be appropriate due to the fundamental right at stake, animus toward gay and lesbian citizens, or sexual orientation as a suspect class. Following this trend, the US Court of Appeals for the Ninth Circuit held that Windsor compels the application of heightened scrutiny in equal protection claims based on sexual orientation.

In the wake of Windsor, the federal courts are engaging, at a deeper level, the meaning of liberty and the operation of equality. For example, the federal court in Utah reasoned that the fundamental right to marry protects the choice of a same-sex partner because this choice goes to “the heart of the right to liberty.” Focusing on the “inner attributes of marriage,” the court understood the right to marry as intertwined with rights of privacy and intimate association that are integral to a person’s dignity and autonomy.

The federal court in Oklahoma also observed that equal protection lies at the heart of our system of laws and is “central to our consent to be governed.” In upholding the marriage rights of same-sex couples, the federal court in Kentucky advised that the opinion was making real the promise of equal protection and profoundly affecting the experience of same-sex couples in the state simply by elevating their marriages “to an equal status in the eyes of the law.” In Virginia, the federal court proposed that our nation is continually being brought to a “deeper understanding of the first three words in our Constitution: we the people.” According to the court, the “people” covered by the protections of the Constitution are “a broader, more diverse family than once imagined.”

Denying same-sex couples the right to marry or recognizing their valid marriages is of enormous personal significance to gay and lesbian families. In Windsor, Kennedy advised that “DOMA writes inequality into the entire US Code.” Similarly, in the Florida case, the state’s marriage laws “write inequality” into the entire legal system of the state.

Among the substantive rights denied the Florida couples are the right to sue for wrongful death of their partner, the right to own property with a spouse as an estate by the entireties and the right to protect a homestead from a spouse’s creditors as well as from alienation and devise of the homestead. In addition, the Florida couples are denied the right to make medical decisions for an ill or incapacitated spouse without an advance health care directive, the right to inherit a share of the estate of a spouse who dies without a will and the right to receive an elective share of the estate of a spouse who dies with a will. Hundreds of additional rights are at stake, from the right of spouses of military personnel to participate in the state’s program for military spouses to the right to receive certain workers’ compensation benefits for a deceased spouse who dies as a result of a work-related accident as well as the right to spousal insurance coverage and benefits, where spousal benefits are otherwise available.

The dignitary interests of gay and lesbian couples are just as significant. Imagine, for example, not being able to make medical decisions for your child or participate in your child’s educational activities. Imagine getting engaged and not being able to announce this joyous occasion to co-workers, for fear of losing your job. Imagine planning to celebrate your love and commitment at a local restaurant, only to be turned away by the management. Imagine getting lawfully married in another state and, upon returning home, to have your home state effectively terminate your marriage.

Imagine your spouse’s having complications during childbirth and the hospital’s forbidding you to see her, leaving you in the waiting room, not knowing whether she or the child are alive. Or imagine having your loved one die, only to be evicted from your home by the state-sanctioned official heirs of your partner or, as in the case of the Ohio plaintiffs, not being able to be listed on the death certificate as the surviving spouse.

Each of these egregious, hurtful and demeaning events has happened to gay and lesbian couples. Oppression against gays and lesbians has not only been condoned by the state in many cases without civil recourse but, in the case of marriage inequality, it has also been required by the state. Marriage laws of a state, written across the expanse of the legal system, carry a deep and disqualifying punch of state disapproval, telling the world that gay and lesbian couples are in second-tier relationships that are not worthy of the shelter, benefits or dignity given by the state to opposite-sex couples.

Reviewing the historical background and legislative history of the laws in Ohio, the federal court concluded that the state was “engaging in discrimination of an unusual character” against gay and lesbian couples. In a similar vein, the federal court in Virginia identified the “gravity of the ongoing significant harm being inflicted upon Virginia’s gay and lesbian citizens.” According to the court, a proposal to wait for a legislative or electorate solution “ignores the needless accumulation of that pain” on gay and lesbian couples and “the stigma, humiliation and prejudice that would be visited upon these citizens’ children.”

As a nation, we are walking with the courts out of a shameful history of tragedy and oppression. Gay and lesbian couples have come out of the closet to claim their love and their right to marry. In Florida, one of the named plaintiffs is Equality Florida Institute, which has launched a “Get Engaged” campaign to make visible the love and commitments of gay and lesbian families. As civil society has responded, so have the courts, turning the tide of misunderstanding to one of greater understanding and acceptance. While the Florida plaintiffs litigate their case, the other cases move toward the Supreme Court, which will likely bring this chapter of constitutional history to a more inclusive close.

Judith E. Koons is a Professor of Law at Barry University School of Law in Orlando, Florida, where she teaches Torts, Remedies, Professional Responsibility and Florida constitutional law. With a law degree from the University of Florida College of Law and a master’s degree in theological studies from Harvard Divinity School, Professor Koons has published a number of articles on social and ecological justice, including several articles on marriage equality.

Suggested Citation: Judith E. Koons, Florida’s Case for Marriage Equality: The Significance of the Right to Marry, JURIST – Forum, Feb. 28, 2014, http://jurist.org/forum/2014/02/judith-koons-florida-marriage.php.