Melbourne, Florida: (321) 984-4100
Princeton, New Jersey (609) 921-0033
New York, New York (212) 729-9987

Call Now
Florida | Princeton | New York

Same Sex Marriage Begins In Florida


Timely Questions and Answers:

Added December 20, 2014 by Wayne F. Jentis, Esq.

(Latest factual information and quotes included from various sources crediting the Associated Press.)

December 19, 2014, A Proud day for the United States as a whole, with the U.S. Supreme Court again going on record upholding the Constitutional Guarantee of Equal Protection and again denouncing any form of discrimination, including refusal to recognize Gay Marriage.

Florida 36th state, plus the District of Columbia, to recognize Same-Sex Marriage

On December 19, 2014, the United States Supreme Court denied the State of Florida’s motion for a stay of an August federal court ruling that overturned the state’s ban on marriage for same-sex couples. This ruling single handedly both allows gay marriages legally obtained in any other state in the country to be recognized by Florida and opens up the right of same sex marriages to be performed in Florida starting January 6, 2015.

Will Gay Marriage Occur statewide in Florida on January 6, 2015?

Some reports have stated that whether all or only some counties will start issuing the licenses by January 6 might still be in question for a couple of weeks. Before last night’s ruling, Florida Attorney General Bondi had said that if the ban was struck down, some, but not all, county clerks in Florida would begin issuing marriage licenses, causing confusion throughout the state. She said that would happen because the lawsuit against Florida’s ban only named the clerk in tiny Washington County in the Panhandle. After last night’s ruling, however, legal scholars believe all county clerks will have such an obligation. And Bondi’s remarks last night after the ruling were:

“Tonight, the United States Supreme Court denied the state’s request for a stay in the case before the 11th Circuit Court of Appeals. Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage. Nonetheless, the Supreme Court has now spoken, and the stay will end on January 5.”

Earlier this week a law firm for the association representing Florida’s 67 court clerks issued an advisory opinion that said Hinkle’s ruling applies only to Washington County and not to the rest of Florida. Betsy White, one of several civil rights attorneys in Jacksonville representing two of the gay couples named in the federal lawsuit, however, insisted the clerks’ law firm “is dead wrong,” and that its opinion essentially encourages 66 separate lawsuits, one for each Florida county not named in the current suit.

If court clerks deviate from Hinkle’s ruling, White said her firm is prepared to petition the federal court to force clerks statewide to comply with it. “This is an injunctive case. When injunctions are issued by a federal judge, they carry the weight of the federal law,” she said.

Hillsborough County Clerk Pat Frank said she has been told she could be prosecuted for malfeasance or misfeasance in office — a first-degree misdemeanor — if she marries same sex couples. She stated “I don’t mind going to jail, I don’t mind paying the thousand dollar fine,” she said. “What I do mind is if the governor determines that it’s malfeasance in office, he could suspend me, and I’m not about to allow that to happen. We’re in the midst of an important transformation and I couldn’t do that to my staff.” Pat Frank added “This is the most obvious violation of civil rights,” she said. “I can’t see how a higher court can’t identify this.” “Justice delayed,” she said, “is justice denied.

Daniel Tilley of the ACLU of Florida emphasized that now clerks across the entire state have a duty to marry couples. “The Supreme Court has spoken, and we expect clerks to begin marrying couples who will finally get access to the protections their families deserve.” It appears by the State Attorney’s comment that “the Supreme Court has now spoken, and the stay will end on January 5” concedes the point but it remains to be seen if a law firm for the association representing Florida’s 67 court clerks will concede the point now as well.

How Did We Get Gay Marriage in Florida already? I Thought Florida would be the last holdout after voters passed a gay marriage ban in 2008?

Earlier this year, on Aug. 21, U.S. District Judge Hinkle of Tallahassee had ruled in favor of same-sex couples in Florida by throwing out the gay-marriage ban in Florida’s Constitution — which was controversially approved by 62 percent of voters in 2008 –calling it “an obvious pretext for discrimination.” Like many other judges and appellate courts, Hinkle ruled the ban approved by voters in 2008 violates the U.S. Constitution’s guarantee of equal protection. Hinkle’s ruling occurred in the federal marriage cases, Brenner v. Scott and Grimsley and Albu v. Scott, brought by the ACLU of Florida, SAVE and private counsel.

Judge Hinkle stayed (temporarily suspended) his ruling, however, until Jan. 5, 2015, allowing Florida Attorney General Pam Bondi to appeal. Bondi requested that Justice Clarence Thomas of the United States Supreme Court extend a stay preventing the state from recognizing the marriages of eight gay and lesbian couples. The resulting Order, after review by all of the Supreme Court Justices means the stay will in fact expire at the end of the day on January 5, 2014, and thus same-sex couples will be free to marry in Florida on January 6, 2014. The short and simple declaration that “The application for stay presented to Justice Thomas and by him referred to the Court is denied,announced by the Supreme Court Friday night, allows Florida to become the 36th state, plus the District of Columbia, to recognize same-sex marriage.

Will Florida Same-Sex Couples Married Elsewhere Need to Remarry in Florida? Will the Same Laws Apply?

Same sex couples who had previously married and later moved to Florida will now be able to have their marriages recognized as valid in Florida. This is important so that same sex couples will be legally able to have all the same family law and court protections as all other married couples, and will not need to be married again in Florida to achieve that status. The ruling means that same sex couples will have the availability of all the family laws already on the books in Florida without the time-delaying difficulty or need to create new law that some other states originally experienced when they first approved civil unions or other statuses that were less than a full “marriage.” With access to the same laws already in place in Florida, same sex couples will immediately be legally able to enter and protect a marriage with premarital agreements if they desire and/or be able to dissolve a marriage with all the same protections of fairness that opposite-sex couples have enjoyed if their relationship does not work out. On a more optimistic note, this ruling should pave the way for legal support for so many other beneficial marital rights such as availability of health insurance to same sex “spouses”, survivor benefits, Social Security benefits, immigration rights and even such rights as being able to be buried in the same veteran cemetery when one of the couple is a veteran but the only other other non-veteran person who could be buried with them in the same cemetery is their spouse. The new rights that will be available to same sex couples whether married in Florida or married elsewhere (upon the proper steps of registration of out-of-state marriages to be set up by county clerks) is quite an expansive list.

“We are thrilled the U.S. Supreme Court has denied the State’s request to delay marriages in Florida,” said Nadine Smith, CEO of Equality Florida, the state’s largest advocacy organization for gay, lesbian, bisexual and transgender Floridians. “Every day of delay is another day of harm experienced by thousands of loving and committed same-sex couples in Florida. It’s time to break out the wedding bells! We look forward to January 6th being a special day — Florida is ready for the freedom to marry.”

“We are ecstatic what the Supreme Court has done today,” said Daniel Tilley, an attorney for the American Civil Liberties Union of Florida, which filed a federal lawsuit on behalf of same-sex couples and the LGBT-rights group SAVE. “We are so happy for our plaintiffs and all our same-sex couples who can go ahead and get married and have their marriages recognized in their home states.”

Is the Issue of Same Sex Marriage in Florida fully resolved?

It appears to be and likely is resolved, but cases still exist that need to be ruled upon or dismissed which could delay full statewide compliance. While there are still separate appeal cases pending a final decision in Florida, and elsewhere, it is very unlikely that any case will now be able to prevent or interrupt the same sex right to marry to commence on January 6, 2014. There may be some individual resistance of specific rights of marriage that same sex couples will be entitled to, but now with the refusal of the U.S. Supreme Court to extend a stay that holds off the federal court ruling that failure to allow same sex marriage in Florida is unconstitutional, and also now with the majority mindset of the nation toward elimination of discrimination against same sex couples, it cannot be too long before same sex families will enjoy every equal protection right under the law in Florida, and possibly in every state of the union within the next year or two. The “writing is on the wall.” Same sex marriage has been legalized in Florida. Whether it is implemented statewide at once or not, or whether individual rights that are granted to “all married couples” will be temporarily denied individually and then have to be enforced by a court, those possibilities always exist. Florida cannot defy the Federal Courts though, and Florida cannot make retroactive laws. So it is hard to imagine a scenario after January 6, 2015 when same sex marriages commence, that the issue will not be considered resolved now that the highest court in the land has spoken.

What does this mean for Gay Marriage Nationwide?

On the federal level, most federal judges and appeals courts have ruled against state bans and gay marriages are occurring in about three dozen states. The 6th U.S. Circuit Court of Appeals in Cincinnati, however, on November 7, 2014, upheld the right of four states (Michigan, Ohio, Kentucky and Tennessee) to decide whether to allow gay marriage. This is contrary to at least a dozen other Federal rulings. Therefore it seems the Supreme Court’s hand may now be forced. It now appears the Supreme Court will now see the need to accept this appeal that will ultimately require the Supreme Court to make a more direct ruling on the matter. So far this year the Supreme Court has aided the progression of marriage equality in the nation simply by either refusing to hear appeal cases from other Federal Courts that have ruled that same sex marriage discrimination is unconstitutional, or as in this Florida case, by refusing to extend a stay on a federal court hearing that allowed time for an appeal of Federal Courts ruling disallowing such discrimination. The refusal to hear a case is a unique right of the U.S. Supreme Court that by design has the same effect as upholding the lower federal court ruling, since there is no where else for that ruling to be appealed to. But in the 6th Federal Circuit case where a Federal Court has actually upheld four States’ right to decide whether to allow same-sex marriage or not, those states may have to wait for the Supreme Court to itself actually hear the case. Should the Supreme Court choose not to hear the case, their failure to address the issue on a national level could leave open a door for discrimination by a very small minority of States. Given its rulings thus far, The Supreme Court is not likely to allow that to happen. Briefs are due before the end of this year so the Supreme Court will have to decide if it will hear the case in the near future. Hopefully the case will be heard by the Supreme Court in the Spring 2015 session so a decision might be available by June 2015, but if oral argument is unable to be scheduled until the Fall 2015 session, it may be 2016 before a decision would be announced. If the Court continues in the direction it has been going up to this point by refusing to take so many other same-sex marriage cases thereby leaving rulings standing that refuse to allow bans on same sex marriage, upon a ruling addressing this 6th Circuit Court of Appeals Case, this nation may see nationwide legalization of marriage in the United States in either 2015 or 2016. In the meantime the remaining ten states that do not allow same sex marriage so far may choose to wait and see if and when the Supreme Court makes a ruling on this important case before acting, or pending cases in those districts may come to the same resolution as the Florida case has and the states allowing same-sex marriage will continue to grow. But while it remains likely that same-sex marriage will be a reality nationwide in the next couple of years, at least four states of Michigan, Ohio, Kentucky and Tennessee will need a ruling from the United States Supreme Court for that to happen based upon the ruling of the The 6th U.S. Circuit Court of Appeals in Cincinnati on November 7, 2014.

Are Lawyers and Judges Due all the Credit for the Somewhat Recent Shift in Public Opinion?

It has not only been the attorneys that have turned the tide of public as well as court opinion, but moreover it has been same sex couples all over the country who have felt more comfortable revealing and sharing the longevity of their long-term relationships, sharing the greater good they have achieved and contributed to society by way of successful loving relations raising children, especially children often adopted who would otherwise be lost in a less-than-perfect foster home system, as well as their extensive contributions of service to our country in the military. The nation has learned that nearly every other common good created by typical American families is being accomplished by same sex couples as well “behind curtains” yet there are numerous gross injustices these individuals are experiencing in their lives that other married American couples never imagine and/or simply take for granted.

Is America Returning to Equal Protection Principles Established by our Founding Forefathers?

It appears so. America, known by so many as the land of freedom and democracy, has commendably taken a new step to again acknowledge through its highest Court of the land the importance of the equal protection clause in the United States Constitution. And the swiftest way to do it was simply to declare it will not stay a State ruling finding a ban on same sex marriage is unconstitutional and a clear pretext for discrimination. It follows then that the remaining minority of states that still do not allow same sex marriage will now likely sooner rather than later have to also bow to the growing national and world popular opinion that discrimination is wrong, and that same-sex couples must be specifically included in that list of protected rights due equal protection under the law. Throughout history the USA has been a major proponent of Human Rights of all kinds, even if history also shows it stumbled with less than perfect polices along the way. While it did take some challenges to achieve specific acknowledgement of equal rights based on basic differences such as gender, race, religion and nationality, it should be a proud day of all Americans when our Courts evidence a return to the principles that our forefathers so wisely imparted into our national constitution, that “ALL MEN ARE CREATED EQUAL” which fortunately our Courts have since interpreted to mean ALL PERSONS ARE EQUAL. In an age where people are aware of the inequities that occur in our legal system on all levels for so many different reasons, it is very encouraging to know the Highest Court in the Land continues to return to the one great United State Constitution to guide it in the pursuit of truly giving all individuals equal protection under the law, regardless of their differences. How this country’s forefathers had such foresight and knowledge to create such a lasting document is truly awe inspiring.

Contact Us

East Coast Law P.A.

A FL, NJ & NY Law Firm

FLORIDA Main Office
1900 S. Harbor City Blvd.
Suite 315
Melbourne, FL 32901
Ph: (321) 984-4100
Fax: (888) 471-5693

New Jersey
475 Wall St.
Princeton, NJ 08540
Ph. (609) 921-0033
Fax: (609) 921-8668

New York
130 Malcolm X Blvd.
Suite 1107
New York, NY 11026
Ph. (212) 729-9987
Fax: (888) 471-5693