New Developments in Florida on Same-Sex Marriage – Is the Supreme Court Next?

In February, we discussed recent federal court decisions that overturn all or parts of the bans of same sex marriages in Kentucky and Virginia.  In that discussion, we mentioned that a suit had been filed in Miami-Dade County wherein twelve Floridians sought the right to get married in Florida.  For a review of that discussion, please see our prior article.  Since then courts in thirteen other states have held that state law prohibitions on the right of same sex couples to marry violated the U.S. Constitution.   In addition, three U.S. Circuit Courts of Appeal have upheld such rulings within their district.

Last week, in the case of Brenner v. Scott, the U.S. District Court for the Northern District of Florida held that Florida’s ban on same sex marriages violated the Equal Protection and Due Process clauses of the Fourteenth Amendment of the U.S. Constitution.  The basis of the court’s ruling is similar to the rulings in the other states:

[M]arriage is a fundamental right as that term is used in cases arising under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, that Florida’s same-sex marriage provisions thus must be reviewed under strict scrutiny, and that, when so reviewed, the provisions are unconstitutional.

The Brenner decision follows four recent state court cases from Monroe, Miami-Dade, Broward, and Palm Beach Counties where the courts held that all or parts of Florida’s ban on same sex marriage is unconstitutional.  These four decisions were issued between July 25 and August 5.  The Attorney General has appealed all of the state court cases.

Recently, the U.S. Supreme Court issued an order staying the order issued by the U.S. Court of Appeals for the Fourth Circuit in Bostic v. Shafer, which was discussed in our earlier article.  The practical effect of this stay is to postpone the implementation of the Court of Appeal’s decision until the U.S. Supreme Court rules on the issue.   It is anticipated that the court will hear the case in its next session, which begins in October.  Until then, the status of Florida’s laws pertaining to same sex marriage is in limbo.