Supreme Court Decision Could Make Gay Marriage Illegal in Florida

Currently the nation is waiting for the U.S. Supreme Court to release its decision on two legal questions. The first is whether states must allow same-sex couples to marry, and the second is whether states that ban same-sex marriage must recognize such marriages performed in other states and countries. 

Some gay couples are in angst, worried what would happen to marriage equality if SCOTUS rules that the federal government cannot dictate how states choose to define marriage. Such a ruling could close the door on same-sex marriage in Florida because of the state's 2008 ban against it.

James Brenner, the plaintiff whose case Brenner v. Scott challenged Florida's gay marriage ban, suggests that any gay couples considering marriage should marry now. That way, even if the Supreme Court's decision lets the Florida ban stay in effect, perhaps gay marriages performed during the current window of legality could be grandfathered in.

Florida voters in 2008 approved a measure to the state constitution that banned gay marriage. That was challenged in several court cases, and several federal judges in Florida ruled that the ban is unconstitutional, violating the 14th Amendment’s due-process and equal-protection clauses. Florida's attorney general, Pam Bondi, appealed to the 11th Circuit Court of Appeals in Atlanta, but in the meantime, cases from other parts of the country had reached the Supreme Court, so the appeals court decided to hold off on ruling on Bondi's case until the Supreme Court weighs in. Nonetheless, local courts began issuing marriage licenses for same-sex couples, and weddings proceeded, despite the possibility that the legality could be reversed. 

In January, the 11th Circuit Court of Appeals, which is based in Atlanta, stated it would place a hold on all appeals regarding gay marriage (including those from Alabama and Georgia) until after SCOTUS makes a decision on a gay marriage case from Sixth Circuit Court. The 11th Circuit Court is expected to rule according to what SCOTUS decides. 

Since nobody can predict what the Supreme Court justices will decide, Brenner suggests that same-sex couples who are planning to marry in Florida to consider doing it as soon as possible, specifically before SCOTUS "lays down the law" so they are not shut out of their opportunity to marry in the Sunshine State. 

"The issue is: What if SCOTUS decides [it] cannot dictate to a state what marriage is IN that state? The justices might say [the states] have to recognize legal marriages performed elsewhere, but not require [states with bans] to issue. If they say no to the first question, the door will slam shut so fast in Florida it will make your head spin," Brenner told New Times. "The likelihood that this will happen is remote. But for something this important, I would say that even with a small chance that the door will close [on couples being able to marry in Florida] that now is the time to take advantage of the freedom to marry. Waiting could be a serious error." Marriage confers certain rights, such as being able to take care of a sick spouse in the hospital or of inheriting property. 

Brenner and other LGBT members who are advocating for couples to get married now "just in case" things go awry for gay rights points out a unique issue some in LGBT community are currently facing: getting married out of fear that the rug might suddenly be pulled out from under them rather than according to their own comfort and schedule. 

In the chance SCOTUS could choose to uphold state's respective bans, it would not just affect couples still hoping to be married but also conjure up a storm of complicated issues.

For example, Brenner believes if SCOTUS rules it cannot dictate how Floridians define marriage, then it could open the door to religious fringe groups who might try to get the Florida Legislature to a pass bill essentially revoking the marriage licenses of same-sex couples couples married in Florida. 

Among the same-sex couples who could not imagine having their newly gained legal recognition taken away are Broward residents Vanessa and Melanie Alenier, who were among the first same-sex couples to receive a marriage license in Florida. 

"We have enjoyed the freedom of marriage since January. What a wonderful freedom it is, too! To be married to the woman I love and the bonus of benefits that come with marriage," said Vanessa, explaining how she was able to add Melanie to her company insurance policy this year. "I also went to the doctor and almost checked the box 'single.' I was like, 'Wow, I'm married and I can put Melanie on my medical information.' I felt a sense of protection on so many levels. I felt equal and validated, as if my life matters. I'm as important as everyone else." 

Vanessa also explained that their 6-year-old so, Ethan, has also benefited from his mommies legally tying the knot. "He feels a sense of pride when he tells his friends his parents are married just like theirs. I see it in his eyes when he says it. We are no different."

"I can't imagine having this taken away!" she said. "I can't imagine my family not having equal rights and equal protections. I see no good reason to take that away from us."

Despite her frustration on what hangs in the air with SCOTUS, Vanessa wholeheartedly believes the court will uphold her family's dignity. 

"I'm confident the U.S. Supreme Court will do what's right for families across the county," she says. 

Legal experts say one of the best predictors of how the justices might rule lies in Justice Kennedy's majority opinion in United States v. Windsor, in which he stated the Defense of Marriage Act's definition of marriage as between one man and one woman violated "the Constitution's guarantee of equality." 

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Jonathan Kendall
Contact: Jonathan Kendall