The gay divorcee: marriage equality in Florida and the nation.

AuthorInsignares, Luis E.
PositionFamily Law

In the summer of 2013, the U.S. Supreme Court decided United States v. Windsor, 570 U.S. 12 (2013). In so doing, the Court ushered in a new era concerning the contentious subject of marriage equality. (1) While the landscape is still changing, seemingly on a daily basis, in all probability, the issue will be resolved this summer when the Court decides the constitutionality of state laws banning same-sex marriage. This article briefly looks at the international context, the Windsor holding, and the current status of same-sex marriage throughout the U.S. and specifically within Florida.

Context: The USA and the Rest of the World

International context is important not only to understand the historical movement in which same-sex legal issues are arising, but also because of the peripatetic nature of our citizens and of those of other countries. This is especially important in Florida due to the large numbers of foreign nationals living here. Many U.S. cases, including Windsor, are arising because persons were legally married elsewhere, including other countries, and then seek divorces or other remedies in jurisdictions that ban or otherwise do not recognize the marriages.

* Canada--Canada passed the Civil Marriage Act in 2005, legalizing same-sex marriages throughout the country. (2) As more recently happened in the U.S., (3) numerous individual Canadian provinces had already approved same-sex marriages. (4)

* Latin America--Argentina (2010), Uruguay (2013), and Brazil (2014) have nationally legalized same-sex marriages. In Mexico, the approvals have come from local and regional governments, with same-sex marriages legal in the capital, and civil unions in some other areas. Nationally, legal same-sex marriages from other jurisdictions are recognized. Colombia and Ecuador have some protections not rising to the level of actual marriage equality. (5)

* Europe--Many European countries have legalized same-sex marriages, civil unions, or similar schemes. (6) The former group includes Holland, Belgium, Norway, Sweden, Denmark, Portugal, Iceland, Spain, France, England, and Wales. The latter group includes Scotland, Ireland (though a referendum on actual marriage is pending), Finland, Germany, Luxembourg, Czech Republic, Hungary, Austria, and Slovenia. There is a rather sharp divide between Western Europe and the countries of the former Soviet bloc, however. (7)

* Africa, the Middle East, Asia, and the Pacific--The general rule in the remainder of the world is that same-sex couples do not have the right to marry. (8) The exceptions tend to occur where European colonial power was strongest, and its cultural connections remain. Thus, South Africa is the only country on that continent allowing same-sex marriage. In April 2013, New Zealand changed from being a civil union country to allowing same-sex marriage. The preceding year, a same-sex marriage bill failed in Australia, but some protections exist there.

The Windsor Case

In late 2012, the Second Circuit Court of Appeals decided Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). (9) In that case, the widow of a woman, whom she had married in Canada, sought a spousal tax deduction on her U.S. federal tax return. The deduction was denied based on the federal Defense of Marriage Act (10) (DOMA), which, inter alia, defined marriage as between a man and woman, and which, thus, limited spousal benefits under more than 1,000 federal statutory provisions, (11) so as to exclude benefits to same-sex spouses who were married in jurisdictions recognizing the legality of such marriages. Ms. Windsor lived in New York, a state that recognized her Canadian same-sex marriage. The Second Circuit held that DOMA violated the Equal Protection Clause of the Constitution.

In Windsor, the federal government did not defend the challenged legislation. (12) However, a group of congressmen from the House of Representatives intervened on behalf of the government, which the Supreme Court held sufficient to satisfy the U.S. Constitution's requirement of a "case or controversy" (13) The Supreme Court invalidated the portion of DOMA that purported to deny federal marriage benefits to same-sex couples, despite those couples having been validly married in jurisdictions permitting the marriage. (14)

In Windsor, the majority held that DOMA violated basic Fifth Amendment due process and equal protection principles applicable to the federal government, (15) and that a "bare congressional desire to harm a politically unpopular group" cannot justify that group's disparate treatment. (16) While the majority cautioned that the decision did not necessarily mean states that had traditionally been given the right to define marriage (as opposed to the federal government) could not validly ban same-sex marriage, (17) Justice Scalia wrote a scathing dissent warning that "no one should be fooled; it is just a matter of listening and waiting for the other shoe." (18)

National Scene post-Windsor

Justice Scalia's Windsor dissent proved prophetic. As soon as Windsor was decided, a floodgate of litigation was opened nationally, in both state and federal courts. While pre-Windsor caselaw gave a slight edge to marriage equality, after that decision, the caselaw overwhelmingly turned against the prohibition of same-sex marriage. In fact, in one of the greater jurisprudential ironies of recent years, many of the cases ruling state laws similar to DOMA unconstitutional cited to Scalia's Windsor dissent, in interpreting the same approach as used in Windsor to be applicable to state same-sex marriage bans.

As of mid-January 2015, gay civil rights advocacy and litigation group Lambda Legal reported that there were 88 pending marriage equality lawsuits in the U.S. (19) These were split roughly with almost two-thirds in the federal courts and the remaining 30 cases in state courts. (20) Of the 58 federal cases, slightly over half (30) were on appeal. (21) Of the 30 state court cases, Lambda Legal reported that slightly more than half (16) were on appeal, including five in their respective supreme courts. (22)

It would be impossible to recount, even in summary fashion, histories of all the same-sex marriage litigation still pending in early 2015. Suffice it to say that the overwhelming majority of the cases, particularly in federal court, in which decisions have been rendered, are in favor of marriage equality. A quick overview of the decisions of the various 11 federal circuits provides a good snapshot of the 37 states in which same-sex couples are currently being married.

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