A same-sex marriage ban is still on Florida’s books. Could that change in 2021?

For supporters of the ban and detractors alike, the fight is anything but symbolic.
In this June 26, 2015 photo, a man holds a U.S. and a rainbow flag outside the Supreme Court in Washington after the court legalized gay marriage nationwide.
In this June 26, 2015 photo, a man holds a U.S. and a rainbow flag outside the Supreme Court in Washington after the court legalized gay marriage nationwide. [ JACQUELYN MARTIN | AP ]
Published Feb. 12, 2021

TALLAHASSEE — Florida’s law banning same-sex marriage can be found in the volume of statutes just two paragraphs below the law that says you can’t marry your sister.

“The term ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the term ‘spouse’ applies only to a member of such a union,” the law reads. It also stipulates that Florida does not recognize any same-sex union, regardless of where it was initiated.

That section of Florida code has been irrelevant for more than half a decade. In 2015, the U.S. Supreme Court ruled that same-sex couples across the country have a Constitutional right to marry. And yet, the ban remains written in Florida’s law, a 194-word section that doesn’t sit right with many progressives.

Michele Rayner-Goolsby, the first openly queer black woman to serve in Florida’s Legislature, wants to strip the statutes of this outdated language. As someone who’s married to a woman, her legislation, House Bill 6017, is personal.

“That choice we made for our family to be married is under constant threat as long as this law is on the books in the state of Florida,” Rayner-Goolsby said at a Friday news conference.

The St. Petersburg Democrat is not the first to try to repeal the toothless ban. In 2016, during the first regular state legislative session after Obergefell v. Hodges legalized gay marriage across the country, Democrats filed a bill to get the language scrubbed from state law. But that was an election year, and the bill went nowhere in the Republican-led Legislature.

Every year since, it’s been a similar story. Democrats in both the House and Senate always propose a bill to strike the language from the Florida statutes. Such a measure has yet to make it to either the House or Senate floor for a vote.

Senate President Wilton Simpson and House Speaker Chris Sprowls, both Republicans, did not respond to requests for comment about this year’s version of the legislation.

Given that marriage equality is already the law of the land across the United States, this may seem to be a symbolic push from Democrats. But neither supporters of the legislation — nor its opponents —see it that way.

John Stemberger, the president and general counsel of the Florida Family Policy Council, heads an organization which opposes marriage equality. He says he hopes Florida’s law stays on the books in case a future Supreme Court overturns Obergefell v. Hodges.

“It’s completely possible given the politics of the future that the Obergefell case could be eroded or overturned completely because it rests on such specious grounds intellectually and legally,” Stemberger said.

Marriage equality is popular among American voters. A May 2020 Gallup survey found that 67 percent of respondents said same-sex marriages should be legally valid, while 31 percent disagreed. The idea isn’t especially anathema to the Republican voter, either: 49 percent of GOPers surveyed by Gallup said they support marriage equality.

That’s a stark change from the politics of 1997, when Florida’s same-sex marriage ban was initially passed by the Legislature. The lawmaking body was run by Republicans then — as now — but a Democratic governor, Lawton Chiles, allowed the bill to become law. Charlie Crist, then a Republican state senator and now a Democratic congressman, was among the legislators who voted for the ban.

In 2008, Florida voters went a step further than that Legislature when 62 percent of the electorate chose to add a same-sex marriage ban to the state Constitution. (Florida voters did this while also choosing Democrat Barack Obama to be the next president.)

The language of that ban, although currently unenforceable, also remains in the state Constitution.

Rayner-Goolsby said the Legislature moving to repeal the state law would be a “critical first step” toward repealing that Constitutional amendment.

But for now, neither supporters nor detractors of the Democrats’ push expect it to go anywhere. Florida’s Republican leaders likely won’t let the issue be heard this legislative session.

“There are certain topics that are just taboo, and it’s too uncomfortable for them to take that up-and-down vote,” said state Sen. Tina Polsky, D-Boca Raton, the senate sponsor of Rayner-Goolsby’s bill. “If they don’t hear it, then they don’t have to get to that point.”