The historic Supreme Court rulings that struck down Section 3 of the Defense of Marriage Act (DOMA) and restored marriage equality to California have heightened the sense of inevitable victory nationwide and energized a community impatient to take action toward full marriage equality in every state as quickly as possible. National and state legal and political experts have worked together to create this analysis to help guide our shared enthusiasm and impatience for equality toward the best course to secure the freedom to marry.
The organizations that have participated in the drafting of this document are each pursuing coordinated programs and strategies to bring full marriage equality to Florida.
While we all celebrate the quantum leap forward the Supreme Court rulings represent, the disparity between the 30% of the population who live in states that afford same-sex couples full marriage protections and those who do not has become even more stark.
The urgency to take action is heightened for those who live in the 37 states that currently do not allow marriage for same-sex couples. Couples in those states will continue to be denied the respect and protections that come with marriage – including the full set of federal protections – even if they marry in another state.
Legal experts and community activists at the national and state level are exploring all the options for challenging those bans – legislative action, ballot referendums, and legal challenges. There is no single approach, as each state faces a different political and legal environment. It is also important for advocates to work with their counterparts from other states so that there is a coordinated national strategy that best serves the interests of the entire community.
Florida’s Path Forward
Florida has changed dramatically since 2008, when just over 60 percent of voters embedded marriage discrimination into the constitution. Florida is a leader in the south, with 54% of voters in support of marriage for same-sex couples, according to a Public Religion Research poll. Another recent poll by Public Policy Polling showed 75% of Floridians now support providing all the benefits of marriage to gay couples either via marriage (37%) or civil unions (38%) while only 23% oppose same-sex couples having any legal protections at all.
Below is a summary of the potential paths to marriage equality in Florida and an assessment of the opportunities and challenges each presents.
There is a general consensus that the Florida legislature, as it is currently comprised, is highly unlikely to take any action in support of marriage equality. However, we are seeing movement on other important protections for the LGBT community, including growing bipartisan support for a statewide non-discrimination bill and some form of relationship recognition. A younger group of legislators from both parties is pushing their leaders to take strong stands in support of LGBT rights, and the election of Florida’s first two out, gay legislators is also improving the climate in Tallahassee. We will continue to work in the capitol to build on that support and gain ground on both sides of the aisle.
Fundamental rights by their very nature should not be subject to a public vote. But in a state with a hostile legislature and a challenging legal path we must consider the possibility of returning to the ballot box to undo the harm.
Florida has particularly burdensome requirements to get a public referendum on a statewide ballot. Furthermore, while public opinion has shifted dramatically since the ban was added to the constitution in 2008, it has not moved sufficiently to clear the 60% favorable vote required in Florida for passage of a ballot measure. Even in 2012’s historic ballot victories in Maryland, Maine, and Washington, the side of marriage equality obtained nowhere near 60% of the vote. Statistical wizard Nate Silver predicts that support among Florida voters will only be at 52.9% in 2016 and will be just shy of 60% by 2020. But those numbers are based on no acceleration in the shift of public opinion. Rather than a rush to the ballot in 2014 with time, resources, turnout, and polling stacked against us, it is better to invest in the tried and proven public education campaign that has helped to accelerate the shift in public opinion in states where victories have been achieved. We can reassess how significantly those numbers have shifted after a solid year, leaving ourselves ample time to prepare for 2016 or 2018 as a more favorable time for taking the issue back to the ballot.
A lawsuit challenging the constitutionality of Florida’s marriage ban may be the most viable immediate option in Florida but must be pursued with care. The wrong case poorly timed could do more harm than good. The U.S. Court of Appeals for the Eleventh Circuit – the federal appeals court with jurisdiction over Florida, Georgia, and Alabama – is one of the most conservative appellate courts in the federal court system. That court has previously issued decisions that created very unfavorable precedent on the issue of LGBT discrimination. However, the Supreme Court’s recent decision in U.S. v. Windsor may provide a path to overcoming the unfavorable rulings in the Eleventh Circuit.
The question is not if a lawsuit should be filed to overturn Florida’s discriminatory constitutional amendment – it’s when. To maximize the chance of winning and to avoid jeopardizing lawsuits already pending in other states, a legal challenge needs to be thoughtfully timed. The few successful lawsuits that have won marriage equality, for example in Massachusetts, Iowa and California (and a look at those that have lost), have shown that it takes more than a strong argument and justice to win. It also takes the right legal building blocks; constitutional litigation expertise; extensive background in LGBT legal issues; and millions of dollars in attorney time, expert witness fees, and costs.
There are at least 8 such lawsuits currently pending, with more expected to be filed closer to home very soon. Most of these cases were strategically filed in federal courts where the possibility of favorable rulings is far greater than in the Eleventh Circuit. Because each win creates precedent that helps improve the chances of a successful case in Florida, the best strategy is to file a case that builds on good precedent (instead of filing one prematurely and creating bad precedent for other circuits to grapple with). Wins in other jurisdictions increase the chances of a win in Florida, and, of course, the ultimate goal is for one of these winning cases to end up at the U.S. Supreme Court, where the Court will be forced to squarely answer the question of whether or not the U.S. Constitution tolerates blatant discrimination against same-sex couples and their families. That decision will affect every state, including Florida. A lower court ruling in our favor has a much greater chance of being accepted for review by the Supreme Court than an unfavorable one, and as the recent DOMA and Prop 8 decisions show, it’s much better to be on the winning side of a case going up to the U.S. Supreme Court on appeal than on the losing side.
We are building a team of top national and state attorneys who are monitoring the progress of these lawsuits and will be prepared to initiate a Florida lawsuit once favorable precedent has been established or changes in the legal landscape otherwise improve our prospects in the Eleventh Circuit.
Equality Florida has begun soliciting stories from Florida couples who have indicated a willingness to be potential plaintiffs in the legal challenge. Stories can be shared via www.GetEngaged.org, the website for Equality Florida’s campaign in partnership with Freedom to Marry to increase public support for marriage equality.
It is important to the legal case that the representative plaintiffs are willing to be public about their lives, have compelling stories that reflect their long-term commitment, and can provide examples of current, specific injuries or harm in areas most likely to bring the court to a positive decision, as a result of being denied the right to marry or being denied recognition of their marriage. In addition, it is helpful that plaintiff couples reflect the full diversity of LGBT Floridians.
With all of this in mind, we are asking the community work with us in implementing the best strategy and laying the necessary foundation for a successful legal challenge to Florida’s marriage ban.
Premature lawsuits filed by individuals without considering all of thesefactors could be very harmful to this effort. A federal appeals court is unlikely to revisit its own recent rulings, and an adverse decision could set the goal back for years or even decades.