Florida’s Amendment 2: Article 1, Section 27 - Marriage Defined and Domestic Partnership Rights
by Michael Sauvé
In Florida, statutory language was adopted mandating the proscription of same-sex marriage creation and recognition.[1] In 2008, a ballot initiative sought to inject the statutory provisions within the constitution.[2] With a vote of 4,890,883, 61.9% of voters, the amendment passed.[3] The language of the amendment states, "Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."[4] The implication of the "substantial equivalent thereof" language causes concern for existing domestic partnerships.
Several municipalities throughout Florida have enacted laws granting domestic partners some recognition and benefits.[5] The Board of County Commissioners of Broward County Florida in 1999 enacted Ordinance 199-03, the Broward County Domestic Partnership Act of 1999.[6] The act created a domestic partner registry and provided health and other benefits for partners of county employees.[7]
Shortly after enactment, Lawrence Lowe, a resident of Broward County, challenged the Partnership Act.[8] The trial court rejected Lowe's constitutional challenge and denied his request for relief.[9] The court reasoned that the Act does not curtail any existing rights -- those incident to a legal marriage -- nor does it alter the shape of the marital relationship recognized by Florida law.[10] The Act is not limited to persons of the same sex, and although it provides benefits to domestic partners, it does not create the plethora of rights and obligations that accompany a traditional marriage.[11]
The court explained that domestic partners under the Act are still precluded from receiving many of the rights reserved for married couples.[12] Examples of some of those rights include:
- The right to jointly adopt (Fla.Stat. § 63.042(2)(a))
- Equal rights in property acquired during the marriage (Fla.Stat. § 61.075)
- The right to hold property as tenants by the entireties (Fla.Stat. § 689.11)
- The right to rehabilitative or permanent alimony in a proceeding for the dissolution of marriage (Fla.Stat. §§ 61.071, 61.08)
- The right to an elective share in the estate of a deceased spouse (Fla.Stat. § 732.102)
- The right to enter into a gestational surrogacy agreement (Fla.Stat. § 742.15(1))
- Distribution rights in homestead property (Fla. Stat. § 732.401; Fla. Const. Art. 10, § 4(c))
- Legitimacy of children born out of wedlock upon the marriage of the parents (Fla.Stat. § 742.091)
- Certain state and federal tax benefits.[13]
The court further reasoned that unlike a traditional marriage, a domestic partnership is purely contractual, based on the mutual agreement of the parties.[14] The court disagreed with Lowe's contention that the Act has created a "new marriage-like relationship."[15] The Act primarily extended employment benefits and granted visitation rights at county facilities to a certain category of beneficiaries.[16] Additionally, it allowed the county to be competitive with companies in the private sector that offer insurance and other benefits to cohabiting same-sex couples."[17]
The Lowe case was litigated prior to the adoption of the marriage amendment. Some of the reasoning in Lowe contradicts courts in other jurisdictions. However, binding authority will ultimately come from Florida's Supreme Court or the United States Supreme Court. Lowe is currently the only case on point regarding domestic partnerships and benefits afforded to them in Florida. The implications of the language in the marriage amendment may yield a similar interpretation or overrule Lowe.
When interpreting a constitutional amendment, Florida's courts first look to the explicit language of the provision. Additionally, the courts are obligated to employ a liberal construction of constitutional provisions while being certain to avoid construing the provisions in a manner that would defeat their underlying objectives.[20] The Florida Supreme Court has held that a provision must never be construed in a manner so as to frustrate or deny the will of the people.[21] As applicable to domestic partnerships, the foreseeability to voters that the language of the marriage amendment would remove domestic partnership rights is put at issue under Florida's Supreme Court analysis.
Furthermore, Florida's Constitution provides that an amendment must embrace one subject and the matter be directly connected with that subject.[22] Opponents to Amendment 2 claimed the language of the marriage amendment was in violation of the single subject rule because it provides that a union substantially similar to marriage could affect domestic partnerships in addition to marriage.[23] In determining the measure sufficient to be placed on the ballot, the Florida Supreme Court concluded, "the voter is merely being asked to vote on the singular subject of whether the concept of marriage and the rights and obligations traditionally embodied therein should be limited to the union of one man and one woman."[24]
Proponents of Amendment 2 maintained that the term "substantially similar" was unambiguous and related to unions that provided "comprehensive protections, while anything less than the full panoply of rights of marriage, such as existing domestic partnership protections in Florida, is not."[25] Florida's Supreme Court stated, "the plain language of the proposed amendment is clear that the legal union of a same-sex couple that is not the substantial equivalent of marriage is not within the ambit of this constitutional provision."[26] Thus, the constitutional provision precludes same-sex legal unions that are the "substantial equivalent" to marriage, which according to proponents does not include domestic partnerships.[27]
Amendment 2 was introduced to voters as means of protecting the "sanctity of marriage" by taking the statutory provisions and placing them in the constitution. The drafter of the amendment, John Stemberger, indicated that although the proposed amendment's language is much shorter and succinct, the effect and intent is the same and merely seeks to constitutionally protect marriage in the same way that Florida's law does.[28] However, a report from the Office of Economic and Demographic Research of Florida (OEDRF) indicated that the two provisions are not identical by their language or implications.[29]
The constitutional amendment uses the term "legal union" as found in the statutes, but adds that the "substantial equivalent" of marriage be precluded as well. The amendment provides no definition for the phrase "substantial equivalent thereof", which leaves the wording of the amendment ambiguous.[30] The Office of Economic and Demographic Research of Florida report indicated that the amendment:
[L]eaves open the question whether someone might challenge a relationship alleged to be the substantial equivalent of marriage between persons of the opposite sex when that relationship has some or all of the benefits and obligations typically associated with marriage if that relationship has not been formalized as a marriage pursuant to the requirements of Florida Statutes.[31]If domestic partnership registries are deemed the substantially equivalent to marriage, their termination could place registrants at risk of losing specified rights and benefits, such as those related to health insurance."[32]
Consequently, municipalities currently extending benefits to domestic partners may be impacted by the amendment.[33]
Liberty Counsel, one of the amendment's proponents, maintained that "the proposed amendment would not affect existing domestic partner protections because it only affects policies that provide 'the same panoply of rights' as and thus, 'mimic' marriage."[34] However, these statements are undercut by Liberty Counsel's previous statements and actions. In a challenge against the City of Gainesville, the Liberty Counsel argued that recognizing the relationships of employees and their domestic partners for health insurance purposes "established a relationship that is the equivalent of marriage."[35] Liberty Counsel claimed that Gainesville's policy of providing domestic partner health benefits to employees "mimics" marriage, conflicting with Florida statutory law.[36]
In Martin v. City of Gainesville, Jack Martin objected to his tax dollars being used to provide benefits for the domestic partners of Gainesville city employees.[37] On behalf of Martin, Liberty Counsel argued that the domestic partner relationship recognized for employee benefits created a relationship that was the equivalent of marriage, and such equivalency made the domestic partner relationship void.[38] The health insurance policy being challenged required couples to have a demonstrable commitment to each other.[39] The policy requirements were argued to mirror those of marital requirements, thus evidencing the creation of a similar relationship.[40] Specifically, the policy required the domestic partner employee to share a common residence and share financial responsibilities.[41] Martin's case was dismissed for lack of proper standing but the statements by Liberty Counsel remain in sharp contrast with their statements concerning Florida's marriage amendment.[42]
In Michigan, proponents of the state's marriage amendment changed their position during the campaign for the ballot initiative and after the vote. [43] Initially proponents indicated the amendment would not affect existing domestic partner benefits, once passed they argued that it did.[44] By interpreting the language, in Kalamazoo v. Michigan, Michigan's Supreme Court held that providing health benefits to domestic partners would violate the marriage amendment, thus expanding the language of the amendment to affect benefits extended to domestic partners.[45] Prior reaching the ruling by Michigan's Supreme Court, Michigan State University released a public statement indicating, "the Michigan Court of Appeals has issued a decision that the Michigan Constitution prohibits public institutions from offering health benefits based on domestic partnership agreements." [46] The ruling by the supreme court bound the interpretation.
In Florida, shortly after the passage of Amendment 2, David Caton, the executive director of the Florida Family Association, released a statement announcing that he would seek to change the Hillsborough County Charter to ban same-sex benefits for county employees.[47] Caton stated: "we're going to use the momentum from the marriage amendment to speak to the fact that most people in this state don't want a recognition of that type of relationship."[48] According to Caton, same-sex domestic partner benefits are the next target.[49]
The impact on domestic partnerships is not isolated to same-sex couples. An opposite-sex couple from Broward County Florida, Helene Milman and Wayne Rauen, are domestic partners. [50] Prior to voting on the ballot initiative, they publicly discussed their domestic partnership.[51] The couple indicated they had been together for 25 years but never married for financial reasons.[52] Milman, who is unemployed, receives Social Security benefits on behalf of her deceased husband; if she re-marries, she would lose that income.[53] An additional concern noted by the couple was that Amendment 2 could take away their right to support one another.[54] In particular, Rauen was able to be at Milman's side before she had a breast cancer operation; the couple publicly spoke of their fear that their hospital visitation rights may be taken away by Amendment 2.[55]
Many hospitals limit visitation solely to family members.[56] In many states, doctors can only consult people related to patients by blood, adoption, or marriage.[57] A recent case filed in the Southern District of Florida, Langbehn v. Public Health Trust of Miami-Dade County et al, involves a long-time lesbian couple, Janice Langbehn and Lisa Pond.[58] Prior to departing on a family cruise, Pond collapsed and was taken to the hospital.[59] The complaint alleged "the hospital refused to accept information from Langbehn regarding Pond's medical history, informing her that she was in an antigay city and state and that she could expect to receive no information or acknowledgment as family."[60] Neither Langbehn nor her children were allowed to see Pond until many hours after their arrival, and even then it was for a small period of time. Langbehn's partner later died alone.[61] Though ballot initiatives represent the will of the voters, it is unlikely that these voters anticipated or intended such a denial of basic human rights.
In another Florida case, Bashaway v. Cheney Brothers Incorporated, Melinda Garrison suffered injuries in an automobile accident and brought a civil action.[62] Her long-term relationship partner Judith Bashaway sought a claim for loss of consortium.[63] Since the couple was not legally married at the time of the injury, and Florida Statute prohibited same-sex marriages, the claim was not actionable.[64] The court held that a consortium claim under Florida law is a derivative claim dependent upon legal status that did not exist in the case.[65]
Although consortium claims compensate for loss within the family unit, no Florida court has expanded such claims beyond the confines of the "nuclear family".[66] The court acknowledged, "Florida has stated as its public policy that a legal relationship is simply unattainable for a couple such as Judith and Melinda."[67] The judge concluded, "The emotional injury, no matter how deeply felt, however, does not give rise to the claim, instead, the existence of the legal relationship fosters the claim."[68]
Michael Sauvé is a student at Barry University School of Law.
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[1] Florida Statute 741.212(1)-(3) & 741.04(1)
741.212(1): Marriages between persons of the same sex entered into in any jurisdiction ... domestic or foreign ... or relationships between persons of the same sex, which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction ... or any other place or location, are not recognized for any purpose in this state.
741.212 (2): The state, its agencies, and its political subdivisions may not give effect to any public act, record or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction ...domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.
741.212 (3): For purposes of interpreting any state statute or rule, the term 'marriage' means only a legal union between one man and one woman as husband and wife, and the term 'spouse' applies only to a member of such a union.
741.04 (1): Prohibits any judge or clerk of the court from issuing a marriage license "unless one party is a male and the other party is a female."
[2] Florida4Marriage.org Constitutional Amendment Petition Form, supra note 4.
[3] Florida Department of State Division of Elections, Constitutional Amendment Results, (last visited December 23, 2008).
[4] Florida4Marriage.org Constitutional Amendment Petition Form, supra note 4.
[5] Florida 4 marriage.org Broward County, Palm Beach County, City of West Palm Beach, City of Miami Beach, City of Key West, City of Tampa, City of Delray Beach, Monroe County, Pinellas Sheriff's Department, University of Florida, Florida International University, etc.
[6] Lowe v. Broward County, 766 So. 2d 1199, 1202 (DCA 4 2000)
[7] Id.
[8] Id. at 1203.
[9] Id.
[10] Id. at 1205.
[11] Id. at 1208.
[12] Id. at 1205, 1206.
[13] Id.
[14] Id. at 1206.
[15] Id.
[16] Id.
[17] Id. quoting, Crawford v. City of Chicago, 304 Ill.App.3d 818 (1999). "The competition in the job market involving employees from laborers to professionals must be dealt with by an employing [governmental] entity on a practical and realistic level if it is to possess the ability to hire and retain qualified individuals to serve the community." Id.
[18] Coastal Fla. Police Benev. Ass'n v. Williams, 838 So.2d 543, 548 (Fla.2003)
[19] Id.
[20] Id.
[21] Gray v. Bryant, 125 So.2d 846, 852 (Fla.1960),
[22] Art. III, § 6, Fla. Const.
[23] Advisory Opinion to Attorney General re Florida Marriage Protection Amendment, 926 So.2d 1229, 1234(Fla.,2006).
[24] Id.
[25] Advisory Opinion to Attorney General, 2005 FL S. Ct. Briefs 1563, 8 (Fla. Sept. 22, 2005).
[26] Advisory Opinion, 926 So.2d at 1234, supra note 123.
[27] Id.
[28] John Semberger, Letter from Proponent, September 13, 2005, (last visited December 23, 2008).
[29] Office of Economic and Demographic Research of Florida, Initiative Financial Information Statement: Florida Marriage Protection Amendment, 4 (last visited December 23, 2008).
[30] Id. at 4.
[31] Id. at 5.
[32] Id. at 1.
[33] Id.
[34] Brief submitted by Liberty Counsel, Martin v. City of Gainesville, 800 So.2d 687 (2001).
[35] Brief submitted by Plaintiff, Martin v. City of Gainesville, 800 So.2d 687 (2001).
[36] Id.
[37] Martin v. City of Gainesville, 800 So.2d 687 (2001)
[38] Brief submitted by Plaintiff, at 5, supra note 135.
[39] Id.
[40] Id.
[41] American Civil Liberties Union, Report on Implications of Florida's Proposed Marriage Ban, (last visited December 23, 2008).
[42] Id.
[43] Stacey Range, Proposal 2 Supporters Taking Aim at Same-Sex Benefits, Lansing St. J., Nov. 4, 2004, at 13.
[44] Id.
[45] National Pride, 481 Mich. at 87
[46] Michigan State University News, Statement from MSU President Lou Anna K. Simon regarding domestic partner benefits ruling today, Feb. 02, 2007, (last visited December 23, 2008).
[47] Bill Varian, Janet Zink and Beth Reinhard, Antigay-rights activist seeks to ban same-sex benefits, St. Petersburg Times, Nov. 21, 2008, (last visited December 23, 2008).
[48] Id.
[49] Id.
[50] Broward County Official Records, Domestic Partnership, Dec. 30, 1999, Book 30144, Page 1276.
[51] Id.
[52] Dara Kam, Gay marriage issue inflames tensions, Palm Beach Post, Oct. 27, 2008, (last visited December 23, 2008).
[53] Id.
[54] Id.
[55] Id.
[56] Human Rights Campaign, Hospital Visitation Authorization, (last visited December 23, 2008).
[57] Alternative to Marriage Project, Hospital Rights, (last visited December 23, 2008).
[58] Langbehn v. Public Health Trust of Miami-Dade County, (last visited December 23, 2008).
[59] Id.
[60] Id.
[61] Id.
[62] Bashaway v. Cheney Bros., Inc., 987 So.2d 93 (2008).
[63] Id.
[64] Id.
[65] Id. at 94.
[66] Id.
[67] Id. at 96.
[68] Id.
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