Gay marriage impact may filter into Florida

Published Nov. 20, 2003|Updated Sept. 2, 2005

Even though Florida bans marriages by same-sex couples, it could soon feel the ripples from this week's Massachusetts court ruling that gives gay partners the right to marry.

Gay activists say they're not aware of any legal challenge to Florida's marriage laws that would compare to the seven same-sex couples who filed suit against the state law in Massachusetts. But legal action will come, they say, just as surely as people in freezing Boston will retire to sunny St. Petersburg.

Why? Because legally married couples who retire to Florida will want to be recognized as such.

Say two men married in Massachusetts come to live in Florida. One dies. Does the other inherit his spouse's property? Or should it go to some other relative, since Florida doesn't recognize their marriage?

Before long, this is likely to be the stuff of lawsuits, here and across the country.

"Is Florida going to be the second state to legalize civil marriages for same-sex couples? Probably not," said Karen Doering, a Tampa-based staff attorney with the National Center for Lesbian Rights. "Florida has not historically been on the cutting edge of progressive issues."

Instead, a significant same-sex marriage case in Florida is "less likely to be a challenge to the Florida marriage statute than to whether Florida can turn its back on what has been recognized in other states," said Howard Simon, executive director of the Florida ACLU.

Across the United States, both gay and conservative groups are buzzing over the dramatic ruling by the Supreme Judicial Court of Massachusetts, which found that homosexual couples were entitled under that state's constitution to marry.

In Tallahassee, lawmakers were informally discussing the ruling among themselves, and discussing strategy to counter its potential impact.

"I think it's a wakeup call to those who feel like we are redesigning the family in a way that is not good for society," said Rep. Dennis Baxley, R-Ocala. "I think there'll be a lot more dialogue before we decide how to respond, but I have no doubt that there will be a legislative response."

Florida House Speaker Johnnie Byrd, R-Plant City, who as a freshman House member in 1997 sponsored the state's same-sex marriage ban, released a statement: "If state supreme courts are going to continue to make rulings similar to today's ruling by Massachusetts' highest court, we must continue the fight to protect the sanctity of marriage and to enact legislation making Defense of Marriage a part of the U.S. Constitution."

Byrd is seeking the Republican nomination for the U.S. Senate.

In the Massachusetts case, seven same-sex couples sued for the right to marry. Bruce Carolan, visiting professor at the Stetson University School of Law in Gulfport, said the high court in Massachusetts ruled that the state's marriage statute effectively outlawed gay marriages, even though it did not explicitly say so. The court ruled in a 4-3 decision that this prohibition violated the equal protection and due process provisions of the Massachusetts Constitution.

The ruling said "the right to marry means little if it does not include the right to marry the person of one's choice." It was the first decision of its kind by a state high court.

Florida already is home to many gay couples married in Canada, activists say, and the Massachusetts ruling _ which will take effect in 180 days _ could eventually bring more same-sex married couples.

It's logical to assume they will want to assert their rights as married couples, said Doering, who also works as a consultant for the group Equality Florida.

For example: One spouse may want to file a wrongful death lawsuit upon the death of the other spouse. Spouses may say they cannot be compelled to testify against their spouses in court. Marriages also can affect Social Security benefits. And Doering said there is a "presumption of marriage," saying that a child born into a marriage is presumed to be the child of both spouses.

Also, relatives and spouses often have access to hospital rooms to see their loved ones, when others do not, said Brian Winfield, communications director of Equality Florida. "Under current existing guidelines . . . your great-grandniece would have more impact on what happens to you than your partner of 30 years."

Many of these issues could be litigated in New England states that are closer to Massachusetts and that do not have "defense of marriage act" laws similar to the Florida law banning gay marriages, Doering said.

Of course, nothing prevents couples from filing lawsuits against Florida's marriage ban law, but Simon of the ACLU was skeptical of how such a challenge would fare by the time it reached the Florida Supreme Court, which could gain more appointees from Republican Gov. Jeb Bush.

Simon is more hopeful for success in a federal suit now pending before the 11th U.S. Circuit Court of Appeals in Atlanta that would strike down Florida's ban on gay adoptions.

"I think the next shoe to fall in Florida may be the gay adoption case," he said.