Last week, it was announced that the 11th Circuit U.S. Court of Appeals will not move forward with Florida's gay marriage case until after the U.S. Supreme Court decides the issue nationally, which likely won't be happening until some time in June.
SCOTUS is set to hear and rule on four cases it took up -- from Kentucky, Michigan, Ohio, and Tennessee -- that challenge whether a state has the right to ban same-sex marriage.
But wait. Wasn't the same-sex marriage thing in Florida settled this year? Didn't the state start allowing same-sex couples to get married on January 7? Didn't Lance Bass just host a mass gay wedding in Fort Lauderdale last week? What does Florida have to do with those other states? What is going on? Why isn't this thing over?
Yes, a lot of us are probably confused by it all. But no worries. We're on it.
New Times spoke with attorney Steven Kramer, founder of Kramer Law of Orlando and Tampa and a legal expert on same-sex marriage issues, to get his expert legal analysis and get to the bottom of what this all means.
The 11th Circuit U.S. Court of Appeals is holding all same-sex marriage cases until SCOTUS rules. What exactly does that mean? The federal appeals court covering Florida (and two other states) -- the same court that basically made it legal to gay-marry in Florida -- said this week that it will hear no arguments in marriage equality cases until the Supreme Court makes its ruling.
What exactly is the Supreme Court looking at/ruling on? The Supreme Court is looking at several same-sex cases across the U.S. But the bottom line here is, it's going to decide whether same-sex marriage is protected under the Constitution.
"The Supreme Court has never ruled on this before," Kramer says. "They've ruled on benefits for partners before, but not on if marriage was protected under the Constitution."
And, unlike in Florida, this has not been decided yet in other states. Most federal courts have ruled that same-sex marriage is protected under the Constitution. But since other states have not ruled on it, same-sex married couples are in limbo with what happens if they decide to move to a state without same-sex marriage. Is their marriage recognized in a state where it's not legal to be same-sex married? Would a same-sex couple be able to get a legal divorce? That's the sort of mix-up the Supreme Court can clear up come June.
So what does that mean for our state? Let's start with this: There are three levels of courts -- the federal level, the federal court of appeals level, and the Supreme Court. When the federal court ruled that the state's same-sex marriage ban was unconstitutional, the state appealed it. But the 11th Circuit U.S. Court of Appeals is basically holding off from making any rulings on said appeals because it wouldn't make much sense to make a ruling only to have the Supreme Court possibly rule the other way. So it's going to wait until that happens.
So what happens if SCOTUS rules against same-sex marriage? "What that would mean would be that same-sex marriages would be banned and not allowed," Kramer says. "And those who are already married in other states would see their marriages in limbo."
What would that mean for Florida? If SCOTUS were to rule that same-sex marriage is not protected under the Constitution, marriages performed in Florida since January 7 would become invalid.
"People's lives would be in the air," Kramer says. Voters in 2008 passed an amendment to the state constitution defining marriage as between one man and one woman. If SCOTUS rules that such bans are indeed protected under the Constitution, Florida would revert back to the 2008 amendment.
"The critique with that is Florida has moved forward since then," Kramer says. "The state has changed its position in a big way since 2008. There's no way that amendment would pass if that vote happened today."
Should same-sex married couples be worried? Kramer says there's reason for optimism for proponents of same-sex marriage.
"The main thing, from my point of view, is that same-sex opponents have not been able to show any evidence on their claims that same-sex marriage is harmful to society," he says. "Meanwhile, advocates have been making arguments that all couples are entitled to equal protection under the law."
Kramer references Loving v. Virginia, the landmark civil rights decision in 1967 that made laws against interracial marriages invalid in the United States. "That case recognized that all couples, no matter their race, had equal-rights protection under the law."
Kramer also references the full faith and credit law as reason for optimism.
"Full faith and credit clause would mean that if any state legalized same-sex marriage, other states will have to recognize it."
Of the 50 states, 38 states and D.C. currently issue marriage licenses to same-sex couples.
Which way will SCOTUS rule? "We can't really guess which way the Supreme Court going to rule," Kramer says. "Both sides have their arguments. But in my opinion, same-sex marriage advocates have a stronger one."
Same-sex marriage opponents say that Loving v. Virginia doesn't apply to gay and lesbian couples.
"The argument is that clause doesn't apply here because this isn't a protected class of citizens," Kramer says. "They also argue tradition: The definition of marriage is between a man and woman and that kind of thing."
But, Kramer says, the arguments aren't necessarily persuasive.
"They can't show good reason it should be banned," he says. "It's getting tougher for them because they must show that it's harmful to society, when it hasn't been. Society is moving forward. And there's no case law that goes against it."
Kramer emphasizes that society has been progressing in its view of the issue. But he also stresses that, lawfully, same-sex marriage opponents have a real problem.
"Yes, same-sex marriage opponents have arguments," he adds. "They're just having trouble articulating them."
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