Revision 9: protecting basic rights of citizens.

• Author: Freidin, Ellen Catsman
• Position: Florida Constitution Revision Commission

Ballot Title: Basic Rights

Ballot Summary: Defines "natural persons," who are equal before the law and who have inalienable rights, as "female and male alike;" provides that no person shall be deprived of any rights because of national origin; changes "physical handicap" to "physical disability" as a reason that people are protected from being deprived of any right.

Revision 9 suggests three important changes to the basic rights provision of the Florida Constitution. First, it would add "female and male alike" to define "natural persons who are equal before the law." This change expressly recognizes equality of the sexes. Second, it would prohibit the government from depriving a person of any right because of the person's national origin. Finally, the revision prohibits the government from depriving a person of any right because of "physical disability," replacing the currently existing protection for "physical handicap.

The Declaration of Rights Committee recommended these changes and the CRC overwhelmingly agreed after studying and debating each separately on its own merits. The vote on "female and male alike" was 31-5.(1) The vote on "national origin" was 28-0;(2) on "physical disability," the vote was 29-1.(3) The final vote on the entire Revision 9 was 28-7.(4)

Basic Rights: History and Interpretation

The basic rights provision begins with an affirmative grant of equality to all natural persons as well as an illustrative enumeration of inalienable rights. The term "natural" was interposed to clarify that this provision does not apply to corporations, but only to private persons.(5)

The last sentence of the basic rights provision currently states, "No person shall be deprived of any right because of race, religion or physical handicap." The Florida Supreme Court has held unequivocally that this section protects individual rights from governmental intrusions, not from intrusions of private parties.(6)

Like the federal equal protection clause that requires strict scrutiny of governmental classifications based on race or national origin,(7) this sentence in the Florida Constitution imposes a duty on the government to demonstrate that a classification based on race, religion, or physical handicap is narrowly tailored to further a compelling state interest.(8) An amendment of this sentence, therefore, is an unambiguous vehicle for providing greater protection to individuals who are members of any newly enumerated group.

The CRC suggested amending this section to add "national origin. PAs will be seen below, however, the CRC chose a different vehicle to recognize that Florida's women and men are equal under the Florida Constitution.

Declaration of Rights Committee: Process and Substance

The CRC conducted 12 public hearings around the state, and the Declaration of Rights Committee met 11 times for approximately 32 hours. Both took testimony on a wide variety of proposals--from legalizing marijuana for medical purposes to permitting conjugal visits in Florida prisons. All together, the committee considered 29 proposals, reporting out 12 proposals favorably. Only three of these proposals, which are now combined in Revision 9, were approved by the whole CRC.(9)

"Female and Male Alike"

As the Florida Supreme Court currently interprets the basic rights provision of Article I, [sections]2, classifications based on race, religion, and physical handicap are subject to strict scrutiny(10) whereas classifications based on sex appear to be subject to a lesser intermediate level scrutiny.(11) To withstand a constitutional challenge, a gender-based(12) classification must be substantially related to the achievement of important governmental objectives.(13) Because the Florida Supreme Court has already interpreted the last sentence of Article I, [sections] 2 to require strict scrutiny of enumerated classifications made on the basis of race, religion, and physical handicap, adding "sex" to this section would almost certainly have raised the level of scrutiny applied to sex-based classifications to strict scrutiny.(14) This change would put sex-based classifications on a par with race-based classifications.

The original proposal before the CRC was to add "sex" to the list of enumerated protected characteristics, but the CRC accepted an amendment to this proposal that defined "natural persons" as "female and male alike." This change was adopted as a solution to concerns expressed by some commissioners that adding "sex" to the last sentence of the basic rights provision could lead a Florida court to legalize same sex marriage.(15) Their concern was engendered by a decision from the Supreme Court of Hawaii requiring the application of strict scrutiny to the marriage statute which limited marriage to a heterosexual union. When the lower court applied strict scrutiny, it held that the Hawaii marriage statute was unconstitutional because it discriminated on the basis of sex.(16)

Because the intent was simply to secure equality for women in the Florida Constitution, the CRC accepted the amendment.(17)

In debating the proposal, Commissioner Gerald Kogan, the chief justice of the Florida Supreme Court, expressed these views:

We have heard from the women, but this is not solely a women's issue. This is a statement that this Constitution Revision Commission can make. And the statement is that once and for all this state will go on record as saying that there is no question but that under the law of this state, men and women are equal. And I say this on behalf of the men who make up approximately half of the population of this state.

And for our spouses, our daughters, our friends that are women, there is no hidden agenda here. But the time has finally come for us to put at rest this issue once and for all. And by saying that men and women are equal under the law, then we have made that statement that the time has finally come for it. And I recommend to all of you to vote in favor of this proposal.(18)

Questions Raised

Questions have arisen concerning the effect and interpretation of the "female and male alike" language in the basic rights provision. Because no other state constitution contains similar language, Florida cannot rely for interpretation solely on other state decisions. Thus, the commissioners' intent in adopting this...