This week's two momentous Supreme Court decisions reach to the heart of the marriage equality debate, but they leave important practical questions unanswered, particularly in a state like Florida that bans gay marriage in its Constitution. • In United States vs. Windsor, the Supreme Court invalidated Section 3 of the federal Defense of Marriage Act, ruling that U.S. law may no longer define marriage as "only a legal union between one man and one woman." In Hollingsworth vs. Perry, the court refused to decide whether voters in California can limit marriage to only between a man and a woman — leaving in place a lower court decision holding that they may not limit marriage in this way. • What do these decisions mean for people in Florida? In 2008, 61.9 percent of voters amended the state Constitution to refuse recognition of any union other than "the legal union of only one man and one woman as husband and wife." Wednesday's decisions don't change that and, in fact, leave something of a muddle.
Let's take the example of Edith Windsor, a woman in her 80s who is the "Windsor" in the DOMA case. She was legally married to a woman in New York, but because of DOMA, when her wife died, federal rules required that Windsor not be treated as a surviving spouse. As a result, the estate tax bill ran to $363,000. Because she still lives in a state that recognizes gay marriage, the court ruling clearly changes that.
But Florida does not recognize same-sex unions. And this week's decisions do not force Florida to change anything. That means it's up to federal law and various agency rules to determine what happens to federal marital benefits for those married legally elsewhere.
Same-sex couples may legally marry in Canada, 13 states (including California), and several foreign countries. The Supreme Court decisions do not force the states to grant federal rights and obligations to same-sex couples just because they married legally under some state law. As Chief Justice John Roberts pointed out in his dissent in Windsor, the decision presumably allows the federal government to grant federal spousal rights and obligations only to same-sex couples who married and live in a state that recognizes their marriage.
So, today only one situation is certain: Same-sex couples who married legally in one of the states and who also live in one that recognizes same-sex unions may always exercise all of the federal rights and obligations applicable to married people, including the spousal estate tax exemption at issue in Windsor and the rights and obligations stated in "over 1,000 (federal) statutes and numerous federal regulations." Same-sex couples who married legally in one of the states and live in one that does not recognize same-sex unions may exercise federal rights and obligations today but may lose them in the future.
If the people of Florida wish to recognize marriage equality, they must vote to amend the Florida Constitution. One day the Supreme Court of the United States may require Florida to recognize same-sex marriages performed legally in another state, but today is not that day. Like it or not, the marriage equality debate continues. Such is the nature of a democracy.
As in any democracy with multiple branches of government, federal and state legislatures and agencies may tinker with recognition of marriage equality. Federal and state courts may decide whether the federal and state constitutions limit what they can do. Federal and state legislatures, agencies and courts may bat the pingpong ball of marriage equality back and forth for decades or generations. Which brings us to the heart of the marriage equality question.
Beyond the question of whether they can do it, why do people wish to deny marriage equality to same-sex couples? The Supreme Court in Windsor found that DOMA was motivated "to harm a politically unpopular group." The U.S. District Court in California, whose decision was left intact Wednesday by the Supreme Court, held a trial, heard evidence from both sides and found that "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."
Why people wish to harm same-sex couples or gay individuals is a real — not a rhetorical — question. It deserves a real debate and a real resolution, not pretend justification or legal maneuvering.
Catherine E. Blackburn is a St. Petersburg lawyer who provides legal life planning services to Florida residents. She regularly prepares legal documents that carry out the wishes of lesbian, gay, bisexual, transgender and queer persons in a legal environment that limits the rights of LGBTQ people. She wrote this exclusively for the Tampa Bay Times.