The Future of Domestic Partnerships in Florida

Shannon Clarke

The 2008 presidential election in Florida had historical significance. Florida, a southern

state known for its conservative bent and discriminatory past, elected an African-American,

democratic president. Ironically, during the same election, Floridians voted to amend the

constitution to prescribe a narrow definition of marriage that discriminates against several

Floridians.1 The amendment defines marriage as a legal union between only a man and a

woman.2 Additionally, the amendment restricts any union “substantially equivalent” to marriage

or “treated as” marriage.3 The “gay marriage ban” is the epithet for the marriage amendment;4

however, the amendment goes beyond simply banning same-sex marriage.5 The ambiguity of

the amendment’s language restricts a variety of legal unions for homosexual and heterosexual

couples, and threatens the validity of domestic partnerships in Florida.

Domestic Partnerships

Domestic partnerships in Florida were first recognized in Broward County when the

county enacted the Domestic Partnership Act of 1999.6 The Act allows two adults to declare as

legal domestic partners if they fulfill certain criteria, such as: not being related by blood, and

dependency on each other for food and shelter.7 The Act extends county benefits and privileges

to domestic partners or dependents of a domestic partner.8 Benefits include: health insurance and

1 F.L. CONST. art. I, § 27.2 Id.3 Id.4 Marriage amendment is the popular name used to describe, Article I, § 27 of the Florida Constitution. 5 Same-sex marriage and gay marriage will be used interchangeably. 6 Lowe v. Broward County, 766 So. 2d 1199, 1201 (Fla. Dist. Ct. App. 4th Dist. 2000)7 Id. at 1202.8 Id.

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family illness leave for the domestic partner or dependent of the partner, and visitation rights for

health care, correctional facilities and juvenile detention.9

Months after Broward County enacted the Domestic Partnership Act, a county resident

filed suit and claimed that the Act violated the Florida constitution.10 In Lowe v Broward

County, the appellant, plaintiff argued that the Act was inconsistent with Florida laws and

intruded upon the state’s authority.11 He contended that domestic partnerships were marriage-

like unions that violated a Florida statute which states that only a legal union between one man

and one woman is a valid marriage.12

The court dismissed the appellant’s first claim and held that the Act does not violate the

Florida statute because the purpose of the statute is directed at same-sex marriages; and the Act

is not limited to same-sex couples.13 The court also held that the Act does not directly conflict

the state’s domain over marriage because it does not grant domestic partners the “plethora of

rights and obligations” that accompany traditional marriage.14

The court ruled that the Florida constitution permits chartered counties to have a broad

power of autonomy that can only be limited if county laws are inconsistent with state law.15 In

referencing a Benjamin Cardozo opinion as persuasive authority, the court ruled that even if the

County’s powers encroached upon areas normally covered by the state, there is no violation

because in government, there exist a “zone where state and local government concerns overlap

9 Id. at 1203.10 Id. at 1201.11 Id. at 1200.12 Marriages between persons of the same-sex, Fla. Stat. § 741.212(3) (1997). Statute enacted after the federal Defense of Marriage Act became law in 1996. 13 Lowe, 766 at 1208.14 Id.15 F.L. CONST. art. VIII § 1(g).

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and intermingle”.16 Broward County’s laws would only be invalid if they substantially infringed

upon state subject matter. 17

The Lowe court did sever one provision of the Act because it encroached upon the state’s

authority of selecting a designated person to make health decisions.18 The court held that the Act

could not modify such designation and give priority to a “close friend,” since a state law already

designates that spouse and children have priority in making health decisions for the other.19

After Broward County’s Act was upheld in court, other municipalities adopted similar

domestic partnership laws.20 Florida counties and cities extend domestic partnerships to both

homosexual and heterosexual couples and offer a variety of benefits. The mayor of Miami,

Manny Diaz, acknowledged that many seniors and children benefit from domestic partnerships.21

However, domestic partnerships have largely been an alternative to marriage for many same-sex

couples in Florida. In 2008, an estimated 10,000 couples throughout the state registered for

domestic partnerships.22

Lowe is the only case to challenge the constitutionality of domestic partnerships in

Florida. Although the court held that the domestic partnerships were valid, the case was decided

prior to the adoption of the marriage amendment. 23 The validity of domestic partnerships can

16 Lowe, 766 at 1205.17 Id.18 Id. at 1210.19 Id.20 There is no state-wide domestic partnership. Local government that recognize domestic partnerships include: The City of Gainesville, Miami-Dade County, Palm Beach County, the City of Tampa, and others. 21 Steve Rothaus, Miami's Mayor Diaz declares opposition of Florida marriage amendmentMiami Herald Manny Diaz Article, Miami Herald, Sept. 8, 2008, available at http://miamiherald.typepad.com/gaysouthflorida/2008/09/miamis-mayor-di.html22 Jessica Gresko, Fla. Marriage Amendment will be Decided Nov. 4, Florida Times-Union, Oct. 27, 2008, available at http://jacksonville.com/apnews/stories/102708/D942P4E82.shtml23 Amendment originally called the Florida Marriage Protection Amendment.

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only be maintained by Florida courts. Opponents of the marriage amendment fear that its vague

and inclusive language will attract legal challenges that seek to invalidate domestic partnerships.

The Marriage Amendment

The marriage amendment, Article I, section 27 of the Florida Constitution 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.24

The marriage amendment began as a 2008 ballot initiative that required a 60% majority

of those voting in order to become an amendment to the state’s constitution.25 The amendment

initiative received 62% of the vote and became law.26 Conversely, in 2009, a poll showed that a

majority of Floridians support some type of legal recognition for same-sex couples.27 Thirty-five

percent favored civil unions and 27 percent said that gays should be allowed to marry. 28 Thirty-

one percent believed that there should be no recognition for same-sex couples.29

Gay rights activists30 opposed the marriage amendment initiative when conservative

groups and churches first introduced it in 2005.31 In 2006, gay rights activist challenged the

proposed amendment in the Florida Supreme Court and argued that the amendment violated

24 F.L. CONST. art. I § 2725 Ballotpedia.org, Florida Protection Amendment, Amendment 2 (2008), available at http://ballotpedia.org/wiki/index.php/Florida_Marriage_Amendment,_Amendment_2_(2008)26 Florida Department of State, available at http://enight.dos.state.fl.us./27 William Turner, New Poll: Majority of FL Ok with Gay Adoption, 2009, Bilerico, available at http://florida.bilerico.com/2009/01/new_poll_majority_of_fl_ok_with_gay_adop.php28 Id. 29 Id.30 Inclusive of advocates for the gay, lesbian, transgender, and bisexual community. 31 Florida Department of State, Divisions of Elections, Florida Marriage Protection Amendment, available at http://election.dos.state.fl.us/initiatives/initdetail.asp?account=41550&seqnum=1

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Article XI, section 332 of the Florida Constitution because it did not apply to one subject matter

in a direct way.33 Opponents also argued that the title of the amendment, Marriage Protection

Amendment, was in violation of a Florida statute34 because the amendment’s title was ambiguous

and unclear.35 They claimed that the amendment’s title did not fairly inform the voter because

the title was inconsistent with the breadth of authority the amendment has in possibly prohibiting

domestic partnerships.36

Marriage amendment opponents further argued that there is no need for the amendment

since Florida already adopted the federal Defense of Marriage Act language into a Florida statute

in 1997; the statute prohibits gays from getting marriage. 37 However, in Advisory Opinion, the

Florida Supreme Court refused to look at the “wisdom and merits” amendment initiative and

held that it did not invalidate and ballot law.38

Proponents of the marriage amendment stated that the amendment is needed in order to

“stem challenges” from activist judges to redefine marriage.39 Liberty Counsel, a conservative

legal team that supports the marriage amendment, repeatedly stated that the amendment would

not affect domestic partnerships.40 Liberty Counsel said that the amendment only seeks to bar

32 F.L. CONST. art. XI § 3 - “The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith.”33 Advisory Opinion to the AG re: Fla. Marriage Prot. Amendment, 926 So. 2d 1229, 1232 (Fla. 2006)34 Reforanda; ballots, Fla. Stat. § 741.212(3) (1997).35 Advisory Opinion, 926 at 1232. 36 Advisory Opinion, 926 at 1235.37 Marriages between persons of the same-sex, Fla. Stat. § 741.212(3) (1997).38 Advisory Opinion, 926 at 1240.39 Associated Press, Group Launches Drive for Florida Amendment Banning Same-sex Marriage,Rome News Tribune, Feb. 15, 2005, available at, http://www.romenews-tribune.com/view/full_story/3412407/article-Group-launches-drive-for-Florida-amendment-banning-same-sex-marriag---Breaking-New Feb 1540 Howard Simon, Report on Implications of Florida’s Proposed Marriage Ban, ACLU, April 6, 2005, available at http://www.aclufl.org/issues/lesbian_gay_rights/domesticpartnerbenefitsfinal.pdf

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unions that are substantially equivalent to marriage, highlighting the fact Lowe held that

domestic partnerships are inferior to marriage because they granted less rights and obligations.41

However, in 2001, Liberty Counsel filed a brief in Martin v. City of Gainesville that

challenged the validity of Gainesville’s grant of domestic partnership benefits. 42 Liberty

Counsel claimed that domestic partnerships were unconstitutional and illegal because they

created a relationship “equivalent to marriage.”43 The Martin court did not address the

substantive issue of the claim and dismissed the complaint on the basis of a pleading

requirement.44

A Cloudy Future

Proponents may intend for the amendment to only ban same-sex marriages and legal

unions, but the court has complete jurisdiction over the matter and is compelled to rule according

to law. If at the time of Lowe’s ruling the marriage amendment was law, there is uncertainty as

to whether the courts would have upheld the Domestic Partnership Act. The Lowe ruling was

based on distinctions of attributes between domestic partnerships and marriages.45 The court said

that marriages were entitled to more rights and obligations than domestic partnerships, thus

domestic partnerships were not equivalent to marriages and not a violation of the law.46 One of

the distinctions mentioned was that only married couples had the right to jointly adopt children.47

However, in 2010, Florida lifted its ban on gay adoption.48 If the Act were challenged to today,

the court could possibly say that joint gay adoption could substantiate the rights that gay couples

41 Lowe, 766 at 1205.42 Martin v. City of Gainesville, 800 So. 2d 687 (Fla. Dist. Ct. App. 1st Dist. 2001)43 Plaintiff brief of Martin v. City of Gainesville.44 Martin, 800 at 687.45 Lowe, 766 at 120546 Id. 47 Id.48 Fla. Dep't of Children & Families v. X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 3d Dist. 2010).

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have, in contrast to the rights of married couples. As Florida progresses from its discriminatory

past and homosexual couples in domestic partnerships are granted more rights, it is very possible

that the court could rule that such domestic partnerships are “treated as” marriage and thus a

violation of the Florida Constitution.

For opponents of the amendment, apprehension also arises from determining the exact

meaning of a union that is “substantially equivalent.” In Lowe, the court named attributes of

what was considered substantial, but did not present an exhaustive definition of what

“substantially equivalent” meant.49 A Florida legislative research arm said that if domestic

partnership registries were found to be the substantial equivalent to marriage, their termination

could come to reality.50 Possibly, “substantial” could be based wholly on the flux of political

sentiment in Florida; especially since judges are either politically appointed or elected by the

citizens.

Anti-gay rhetoric was used to rally support for the amendment.51 Florida, a state that

professes equality under its constitution, has historically denied rights to same-sex couples. In

2004, an attorney filed suit against Broward County on behalf of 170 gays and lesbian couples

who wanted to marry and were denied the right.52 Similarly that same year, couples in Alachua

County went to the courthouse to obtain marriage licenses and were turned away.

If the goal of the state legislature is to ban same-sex marriage, then that goal was already

accomplished in 1997 when the legislature enacted Florida statute § 741.212, which distinctly

bans same-sex marriage. However, with enactment of the marriage amendment, the polity of 49 Lowe, 766 at 1205.50 Jessica Gresko, Fla. Marriage Amendment will be Decided Nov. 4, Florida Times-Union, Oct. 27, 2008, available at http://jacksonville.com/apnews/stories/102708/D942P4E82.shtml51 Jeff Brumley, Both Sides Cite Dangers on Gender Amendment, Florida Times Union, Nov. 1, 2008, available at http://jacksonville.com/tu-online/stories/110108/met_350511416.shtml. 52 Taylor v. Ash, 888 So.2d 649 (Fla.App. 4 Dist. 2004)

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Florida has other intentions. Floridians seem to want to destroy any possible means for same-sex

couples to legally recognize their relationship and receive benefits; however, the language of the

marriage amendment does not just affect gays. The marriage amendment could invalidate

domestic partnerships heterosexual couples too, which would affect many seniors and children.

The marriage amendment is just another illustration of institutionalized bigotry in Florida. Until

the amendment is invalidated, the words the of the Florida Constitution declaring everyone equal

before the law will be without meaning.53

53 F.L. CONST. art. I, § 2.

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