FLORIDA GAY MARRIAGE BAN UNCONSTITUTIONAL

Today a federal judge in the Northern District of Florida (which includes the panhandle to Jacksonville) declared the Florida gay marriage ban unconstitutional.

A link to the opinion is here.

On one side of the case were the individuals challenging the ban (let’s call them the “individuals”) and on the other side was the governor, attorney general, and other public officials defending the ban (let’s refer to them as the “state”).

A few thoughts:

1. This ruling doesn’t mean that gay marriages can go forward in Florida (yet). The judge held the law to be unconstitutional, and then issued a stay pending an appeal.

2. The judge called the state out on one of the questionable legal arguments it has used to defend the gay marriage ban – procreation. Essentially, the state argued that it had a compelling state interest in ensuring procreation which it accomplished through the narrowly tailored measure of banning gay marriage. You read that correctly. Here’s what the judge had to say:

Florida has never conditioned marriage on the desire or capacity to procreate. Thus individuals who are medically unable to procreate can marry in Florida. If married elsewhere, their marriages are recognized in Florida. The same is true for individuals who are beyond child-bearing age. And individuals who have the capacity to procreate when married but who voluntarily or involuntarily become medically unable to procreate, or pass the age when they can do so, are allowed to remain married. In short, the notion that procreation is an essential element of a Florida marriage blinks reality.

3. This case was decided under the 14th Amendment provision that a state cannot “deprive any person of life, liberty, or property, without due process of law.” The Florida gay marriage ban violates this Amendment.

4. The judge boiled the reason behind the ban on gay marriage down to this:

The undeniable truth is that the Florida ban on same-sex marriage stems entirely, or almost entirely, from moral disapproval of the practice. Properly analyzed, the ban must stand or fall on the proposition that the state can enforce that moral disapproval without violating the Fourteenth Amendment.

5. The problem with a ban like Florida’s being founded only on moral disapproval is that the Supreme Court has already held that this doesn’t pass the strict scrutiny test to get past the 14th Amendment. In fact, the judge here used Scalia’s dissent from Lawrence v. Texas, 539 U.S. 558 (2003) to make this exact point.

6. The state also argued that Florida had the prerogative to set its own marriage laws without interference from the federal government or other states. The judge pointed out, and rightly so, that the state could “not explain why, if a state’s laws on marriage are indeed entitled to such deference, the State of Florida is free to ignore the decisions of other equally sovereign states, including New York, Iowa, and Massachusetts.”

So today the Florida gay marriage ban joins other state bans on their way to the U.S. Supreme Court to be (most likely) overturned.