May 5, 1997|
The Honorable Lawton Chiles
Dear Governor Chiles:
In the recently concluded 1997 Regular Session, the Florida Legislature passed CS/HB 147. This bill seeks to prevent our state from recognizing marriages that in the future may be validly entered into under another jurisdiction in the United States, whenever those marriages involve two individuals of the same sex.
The legislation is an tragic, unreasoned response to a state court lawsuit challenging the constitutionality of Hawaii's refusal to grant marriage licenses to same-sex couples. The trial court in Hawaii, after the consideration of extensive expert testimony and argument, found that the state has no compelling reason to prevent same-sex couples from marrying. As that court explained in its December 3, 1996 decision, the evidence failed “to establish or prove that same-sex marriage will result in prejudice or harm to any important public or governmental interest” and there is, therefore, no rational basis “to justify withholding the legal status of marriage” from same-sex couples. The state of Hawaii has appealed that decision and the Hawaii Legislature now has before it several proposals to amend the Hawaii Constitution in attempts to foreclose the viability of marriage to same-sex couples. The ultimate result in Hawaii appears unlikely to be resolved until at least 1998. Notwithstanding these developments, the Florida Legislature has proceeded to adopt the legislation which is now before you.
Discussion of issues relating to the Hawaii marriage lawsuit, and to various proposed legislative responses to it, often has been confused and rife with misunderstandings. The question in the Hawaii case is limited solely to whether or not, under the Hawaii Constitution, the state can deny someone the right to enter into the civil (as opposed to religious) institution of marriage with his or her intended spouse merely because he or she is of the same sex as that person. Just as the legality of marriages between persons of different religions, or between individuals who previously have been divorced has never required religious organizations or clergy who object to interfaith marriage, or to marriage after divorce, to perform such ceremonies or to recognize such marriages for religious purposes, so too the ability of couples of the same sex to enter into civil marriages and to have the legal effect of those marriages civilly respected in other states would have no impact on the absolute right of religious bodies and clergy to decide for themselves whether or not, from their own religious perspectives, they will perform or recognize wedding ceremonies involving individuals of the same sex. The Hawaii Supreme Court specifically ruled that this was the case, as part of the Hawaii marriage litigation, in January of 1996. What is at stake thus has nothing to do with religion and instead is confined to the legal rights, benefits, and mutual responsibilities that the government and businesses assign to those who are civilly married.
What has been at issue has been a much more limited question: Whether or not Florida should respect — or, on the other hand, should refuse to recognize — lawful, civil marriages that will be allowed to be entered into between same-sex couples in Hawaii if the lawsuit still pending there ultimately is successful?
At present, Florida law provides that all marriages contracted outside of the state, which would be valid by the laws of the jurisdiction in which they were contracted, are valid in Florida. This reflects long-standing Florida law, as well as the common law of many other states, recognizing that this is one country and that it would create hardship and massive confusion if individuals who were validly married to one another in one state were no longer considered married as soon as they crossed the borders into Florida. For example, imagine if married couples had to worry if their right to make medical decisions for each other (or their children) would be respected, or if their right to inherit from one another remained valid, or if their family health insurance was in force — merely because they chose to move to or visit another state. Imagine the distress of a bank in their home state that had loaned money based on a spousal guarantee that was binding in that state, only to learn that it would not be enforceable in a sister state. How could a company maintain coherent personnel policies if its officers were required by conflicting state laws to treat the same employee differently depending on the office in which he or she is working? How could a couple be sure their expectations for child or spousal support, property ownership, and insurance rates would be honored?
Last year, the federal government enacted a law entitled the “Defense of Marriage Act” (even though it does not defend anyone's marriage, but instead seeks to allow the invalidation of the future marriages of some people), which is commonly referred to as “DoMA.” DoMA does not require states to enact laws like the bill on your desk. Rather, what DoMA does, for state law purposes, is purport to allow states to pass laws declining to recognize marriages entered into in other states between same-sex couples. DoMA does not resolve the policy issue of whether or not a state should adopt such anti-gay, non-recognition laws. DoMA also does not resolve the constitutional problems posed by these laws, discussed below.
Some who defend laws like DoMA claim that a marriage between two people of the same sex should not be considered a “real” marriage, which they “define” as being a legal union of a man and a woman. The concept of who can marry or how that institution should be “defined,” however, is not static; indeed, it has gone through substantial transition over time. From the 5th to the 14th centuries, the Roman Catholic Church conducted special ceremonies to bless same-sex unions, which were almost identical to those used to bless heterosexual unions. On the other hand, in the 16th century, day laborers and servants were not allowed to marry in Bavaria and Austria unless they had the permission of local political authorities. This law was not finally abolished in Austria until 1921. In 1664, Maryland became the first American colony to ban interracial marriages. By 1750, all southern colonies, plus Massachusetts and Pennsylvania outlawed marriages between two people of different races. The California Supreme Court in 1948 became the first high court in the nation to strike down this “definition” of marriage as a union between two people of the same race as a violation of principles of equal protection of the laws. It was not until 1967 that the United States Supreme Court, in Loving v. Virginia, held unconstitutional similar restrictions on who could marry that remained on the books in Virginia and fifteen other states until only 30 years ago.
Gay men and lesbian women seek to be able to enter legally valid marriages for the same reasons as heterosexuals. As the trial court in Baehr v. Miike [note: later called Baehr v. Anderson] concluded, “In Hawaii, and elsewhere, people marry for a variety of reasons including, but not limited to the following: (1) having or raising children; (2) stability and commitment; (3) emotional closeness; (4) intimacy and monogamy; (5) the establishment of a framework for a long-term relationship; (6) personal significance; (7) recognition by society; and (8) certain legal and economic protections, benefits and obligations.” The court added that, “[i]n Hawaii, and elsewhere, gay men and lesbian women share this same mix of reasons for wanting to be able to marry” and that “[i]n Hawaii, and elsewhere, same-sex couples can, and do, have successful, loving and committed relationships.” After reviewing extensive testimony on the possible effects of allowing same-sex couples to marry on the well-being of children, the court further concluded that “same-sex couples can be as fit and loving parents as … different sex couples,” that “gay and lesbian parents ‘are doing a good job’ raising children and, most important, ‘the kids are turning out just fine,’” and that “if same-sex marriage is allowed, the children being raised by … same-sex couples may be assisted because they may obtain certain protections and benefits that come with or become available as a result of marriage.”
Indeed, the Hawaii trial court concluded that the evidence did not support that anyone would be harmed by recognizing marriages between same-sex couples. Doing so clearly will not adversely affect existing marriages or those that in the future may be entered into by different-sex couples. [note: The Hawaii State Supreme Court made a final ruling in December 9, 1999 which denied legal marriage to same-sex couples. For a review of the pursuit of marital legal status in the U.S., please see Legal Marriage Court Cases — A Timeline.]
HB 147 seeks to deny recognition to marriages that in the future lawfully may be entered into in other states only because one spouse is of the same sex as the other is unjust, mean-spirited, unnecessary, and will be costly to our state. It is part of the extreme right’s strategy of dividing America by casting some among us as less worthy than others. In its landmark decision this past October in Romer v. Evans, the United States Supreme Court ruled that laws based on animus towards gay people cannot stand under our Constitution. Florida does not need expensive litigation brought on by the right wing’s ongoing efforts to demonize those who desire no more than to build a stable and protected home life with the person they cherish.
The ACLU supports legal recognition of lesbian and gay relationships, including the right to marry. Such recognition is imperative for the complete legal equality of lesbian and gay individuals. ACLU Policy No. 262.
The National ACLU has also endorsed the “Marriage Resolution”* developed by a coalition of groups working for the right of lesbians and gay men to marry. It says:
“Because marriage is a basic human right and an individual personal choice, RESOLVED, the state should not interfere with same-gender couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage.”
Finally, whether one endorses the right of same-gender couples to marry, this bill addresses a non-problem. It is far from certain what the final result of the litigation in Hawaii, as well as the efforts to amend the state constitution, will be. There is no need for this bill at this time. The truth is that, in spite of the rhetoric of some of the members of the Florida Legislature to the contrary, this legislation is not about economics or even protecting one’s concept of “family.” It is about exclusion, prejudice and bigotry. The American Civil Liberties Union of Florida urges you to veto CS/HB 147.
Thank you for your consideration.
Larry Helm Spalding, Legislative Staff Counsel
ACLU of Florida
314 West Jefferson St., Tallahassee, FL 32301
904-425-1050; fax 904-425-5097