Who Decides Marriage Equality?


Watching the Gay Pride Parade’s procession of legacy couples, who proudly wore sashes delineating their years of commitment, was bittersweet, rejoicing with them in their celebratory journeys of a life together (as much as 55 years) while sadly contemplating the discriminatory laws that forbid them to marry.  The time is now to address the fairness of allowing these steadfast couples to embrace the protection and rewards of a legal marriage.  But will a majority of Supreme Court justices courageously take a principled stance on marriage equality for all Americans in their expected June decisions?  If not, what will a lesser ruling, reflecting a narrow interpretation of these cases mean, to same-sex couples in south Florida?

Pundits forecast a technical judgement by the Supreme Court on California’s Proposition 8 (Hollingsworth v. Perry, No. 12-144).  This allows California’s high court’s previous ruling on the unconstitutionality of Prop 8 to stand, affecting only California.   However, if the justices render a more nuanced interpretation striking down Prop 8 because “everything but marriage” civil unions are unconstitutional, the eight other states and the District of Columbia with similar laws would be affected.  There will be no direct legal impact on Florida and the 37 other states who amended their state constitution to deny same-sex marriage and to recognize only marriage between a man and a woman. 

The federal case considering same-sex marriage (Windsor v. United States, No. 12-307) challenged the constitutionality of Section 3 of the 1996 Defense of Marriage Act (DOMA), which standardized federal law’s definition of marriage as between one man and one woman.  Section 3 denies same-sex couples, legally married in a state, eligibility for federal benefits.  While it is doubtful that Section 3’s constitutionality will be upheld, the particular argument for its likely demise is debatable.  The four liberal justices’s support of equal protection is at odds with the rationale of the possible swing vote of Justice M. Anthony Kennedy, whose focus is on the states’s traditional authority to regulate marriage.  If the states’s rights argument prevails, the federal government will recognize same-sex marriages only in states where it is legal.  Significantly, this means it is not enough for a same-sex couple to be married in a state that has marriage equality but they must live in a state that grants marital rights to receive federal benefits. 

There are two important exceptions to the “domicile requirement” for same-sex married couples.  Federal benefits are allowed both to a veteran’s same-sex spouse when they are legally married and as well to legally married same-sex immigrants, even when these types of couples are living in a state that does not recognize same-sex marriage.  The question of binational same-sex marriages is problematic as it is unknown if a legal international marriage with allow a US citizen to sponsor her or his non-citizen spouse for legal permanent residence.  Anyone applying for or in the US on a visa should seek advice from an immigration attorney experienced in LGBT issues.  Being married to a U.S. citizen could have negative consequences.

Despite the low expectations for a majority opinion by the Supreme Court justices to adjudicate the constitutionality of same-sex marriage, there are reasons to celebrate even narrow decisions for the Prop 8 and the DOMA cases.  While there will be no immediate legal impact for Floridians, the debate brought attention to the arguments for and against the legal endorsement of marriage equality at the federal and state level.  If the California Supreme Court’s unconstitutional ruling on Prop 8 stands, the largest state in the U.S., as well as the other nine states and the District of Columbia, will resume granting marriage licenses to same sex-couples.  A growing number of legal same-sex marriages will be a positive cultural influence that will inspire legislation in other states to overturn the unfair constitutional amendments against same-sex marriage. 

If you have been lucky enough to have found the love of your life but live in Florida, plan on a long engagement.  Disappointingly, Florida law constitutionally banned same-sex marriages, civil unions and domestic partnerships since 2008.  Cities and counties, however, have established their own requirements for domestic partnerships, usually with very limited benefits.  For example, the benefits of Domestic Partner Registration in Miami-Dade County for straight and gay couples include health care visitation rights and jail visitation for your registered partner.  If you’re a Miami-Dade County employee, you get additional benefits. 

The prospect of changing Florida’s status quo on marriage equality is promising.  A current poll by the nonpartisan Public Religion Research Institute found more than half of Americans (52%) and half of Floridians (also 52%) approved of marriage for gay and lesbian couples.  Hispanic voters in Miami-Dade county sent a resounding positive response in a November 2012 exit poll with 57% supporting legal unions for gay couples.  Demographic research also show that Millennials--born since 1980 and age 18-32 today--support same-sex marriage in far greater numbers than a decade ago.  In the five years since the Florida referendum opposing same-sex marriage passed, opinions have decisively turned around.  Despite the favorable polling numbers, it is daunting to know that to overturn the 2008 amendment banning same-sex marriage will require a 60% approval by voters. 

For more than two decades people of good faith have wrangled over the harm done by expanding the definition of traditional marriage with a contentious point being the role of procreation as validating marriage.  Long ago the science of birth control and artificial reproductive technology, linked with a feminist philosophy of empowerment, diminished a patriarchal view of family and marriage as the creation of only heterosexual couples.  By recognizing the value of same-sex marriage and parenthood as a stabilizing force in the changing dynamics of today’s families, advocates in south Florida for progressive family legislation will reap benefits for all the state’s residents.

The Supreme Court justices are likely to implement an incremental approach to marriage equality despite Solicitor General Donald B. Verrilli, Jr. sage warning that “waiting is not a neutral act” as it “imposes real costs” on those who wait.  On the other hand, the impressive forward momentum of marriage equality found in the Court of Public Opinion promises to be a catalyst in continuing to change hearts and minds.  Seemingly, it is the aggregate legacies of gay and lesbian couples that will transform traditions and will bring acceptance to same-sex couples’ marriages and their families.  


It is essential to find experts to help YOU navigate current legal hurdles to ensure protection of your committed relationship on critical issues: economic planning, health decisions, parenting possibilities and tax ramifications.  Insights into ways to prepare for same-sex marriage legalization are found in the video of the  “DOMA Town Hall: How U.S. v. Windsor Impacts You,” event sponsored by the ACLU of Florida in partnership with SAVE Dade and the Miami-Dade Gay & Lesbian Chamber of Commerce.

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