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Will Florida Mark the Path for Acceptance of Same-Sex Marriage in the Deep South?

JURIST Guest Columnist Brittney Millay, New England Law | Boston, Class of 2016, discusses how recent developments in the southern US could affect same-sex couples...

After a long and drawn out battle, a state judge in Miami-Dade County lifted a temporary ban on same-sex marriage, making it the first county in Florida to allow gay couples to wed. Florida is the third largest state in the US, with a population of approximately 19.9 million people, and is "one of the country's most sought-after destinations for gay men and lesbians." Now that same-sex marriage is legal in Florida, a more conservative state, increasingly more gay people can travel to the Sunshine State for wedding ceremonies. With Florida emerging more liberal on the matter of same-sex marriage, the question is raised whether more states in the Deep South will follow in Florida's footsteps.

Back in August 2014, Judge Hinkle ruled as part of a federal lawsuit that the state's ban on same-sex marriage was unconstitutional. Judge Hinkle then gave the attorney general a substantial amount of time to file an appeal, which temporarily suspended the judge's decision. Nonetheless, the attorney general's attempts to extend the deadline failed, allowing for same-sex marriage licenses to be issued beginning at midnight on Tuesday, January 6, 2015. However, Miami-Dade County Circuit Judge Sarah Zabel did not feel the need to wait until the statewide ban expired and presided over the state's first legal same-sex marriage on Monday afternoon.

As Florida becomes the thirty-sixth state to recognize same-sex marriage, it is apparent that much has changed since the 1970s when Anita Bryant launched her national campaign against gay rights. The drastic change in Florida's view on gay marriage may have been met with resistance from conservatives further north in the state, but could potentially spark change across much of the Deep South. Former Florida Governor Jeb Bush has been a long-time opponent of gay marriage, but made statements regarding the legalization of same-sex marriage by urging supporters and opponents alike that "we have to respect the law." He made no mention or insinuation of challenging the ruling. In fact, his comments seemed to tacitly approve same-sex marriage, or at the very least, to tolerate it. However, with this tacit approval comes the blatant disapproval of same-sex marriage in certain counties within Florida. Duval County stated that they would no longer hold ceremonial courthouse weddings, as they feel marriage should be between a man and a woman, with the Clerk of Courts stating that it would go against his beliefs to perform a ceremony that is not between a man and a woman.

The argument against support of same-sex marriage stems from a "not ready" viewpoint where gay marriage should not be pushed on states in the Deep South as they just are not ready for this type of change. But that argument may be lacking muster by the day, as Alabama's same-sex marriage ban was struck down by a federal judge just weeks after Florida's acceptance of gay marriage. A federal appeals court judge also ruled against delaying the overturning of Alabama's gay marriage bans. In a case where a same-sex couple was seeking recognition of their out-of-state same-sex marriage, US District Judge Callie V.S. Granade stated that Alabama's 2006 "Sanctity of Marriage Amendment" violated both the due process and equal protection clauses of the Fourteenth Amendment. Judge Granade explained that Alabama's prohibition undermined its goal of promoting "optimal environments for children" as it discriminated against children being raised by same-sex parents and those being raised by opposite-sex parents. After Judge Granade's ruling, Alabama Attorney General Luther Strange asked the US Court of Appeals for the Eleventh Circuit to extend a stay on Judge Granade's decisions so that he would be able to appeal the decision. The Eleventh Circuit denied that request, allowing for gay couples to marry after the stay expired.

The Attorney General of Alabama filed a motion asking the judge to put the decision on hold until the US Supreme Court has made a ruling. After the Windsor decision, the Supreme Court continued to deny appeals to hear seven same-sex marriage cases in five states. After the Supreme Court's denial, "seventy percent of Americans now live in states where same-sex couples can legally wed." Finally, the US Supreme Court agreed to hear four new cases on same-sex marriage dealing specifically with the power of states to ban same-sex marriage and to refuse to recognize same-sex marriages performed in other states. As arguments against same-sex marriage continue to fail even rational basis scrutiny, it has become harder and harder for courts to uphold marriage bans. As more and more same-sex couples adopt and raise children, courts have to deal with not only the rights of same-sex couples, but the rights of their children as well. And when children are involved, the best interests of the children are at the forefront of the courts' decisions.

Even Mississippi has shown a slight shift in its approval of same-sex marriage. In 2004, eighty-six percent of Mississippi's population approved of the state's same-sex marriage ban. However, recent polls show that the opposition towards same-sex marriage has weakened as more same-sex couples raise children. According to the Williams Institute, approximately 26 percent of same-sex couples in Mississippi are raising children and that percentage is on the rise. In November 2014, just before Thanksgiving, Judge Carlton Reeves heard a case in his Jackson, Mississippi courtroom where a same-sex couple, married in California, was fighting for both partners to have parental rights of their two children. When Mississippi's lawyers made the argument that Mississippi wasn't ready for such a change and that the issue of recognizing same-sex marriage in Mississippi should not be rushed by the courts, Judge Reeves could not help but disagree. His reasoning was that when Brown v. Board of Education was decided in 1954, it took approximately twenty years before his first-grade class was integrated, strengthening the argument that one cannot wait around for change to happen, sometimes there needs to be a push. Judge Reeves further mentioned that "tradition" is not enough to uphold Mississippi's same-sex marriage ban and that gay and lesbian couples can no longer be treated as second-class citizens. Furthermore, a federal judge in Texas struck down a same-sex marriage ban; however, the ruling has been postponed pending a state appeal. There is also a challenge to a similar marriage ban in Louisiana that is currently pending.

Even with same-sex marriage gaining wide success across the US, the increasing acceptance in the Deep South demonstrates just how far we've come in the battle for equal rights. This effort can be seen in Mercedes Ricks, a 50-year-old native of Colombia and an openly LGBT elected official of Magnolia, Mississippi. Ricks understands the power that acceptance of same-sex marriage in southern states, like Florida and Mississippi, has over other southern states and believes that more southern states will follow in Florida's footsteps. A friend of Ricks stated that obtaining equality in states such as Florida, Mississippi and Alabama can have a monumental impact on acceptance everywhere. He explained, "Let's go to Arkansas, let's go to Mississippi, let's go to Alabama . . . because if we can get equality there, then we've won America."

Other southern states have recognized same-sex marriage, including North and South Carolina as well as Virginia. However, the marriage bans in Florida and Alabama are the first to be deemed unconstitutional in the Deep South. Since the 2013 ruling that DOMA was unconstitutional, there has been a sweeping majority of states striking down marriage bans across the country. The question remains whether or not more states will continue to find same-sex marriage bans unconstitutional or if they will wait to hear what the Supreme Court has to say on the matter in June.

While Florida became the thirty-sixth state to support and allow same-sex marriage, Alabama has become the thirty-seventh and we can see the tides changing. More and more people are accepting that gay couples are entitled to the same benefits as heterosexual couples, including the right to marry. Florida's explicit disapproval of a gay marriage ban has raised awareness across much of the Deep South, forcing other judges, courts, and legislatures to acknowledge that change is coming and Florida is responsible for it. We've already taken Florida, Alabama, the Carolinas, Virginia, West Virginia and Alabama. We're rapidly gaining momentum toward nationwide acceptance of same-sex marriage. Once acceptance is apparent in the South, there is no question that the battle for equality will succeed, and we will owe that success to Florida.

Brittney Millay is a second-year student at New England Law | Boston, where she serves as Vice President of the New England Law|Boston OUTLaws. She is also an Associate on the New England Journal on Criminal & Civil Confinement.

Suggested Citation: Brittney Millay, Will Florida Mark the Path for Acceptance of Same-Sex Marriage in the Deep South?, JURIST - Student Commentary, Feb. 18, 2015, http://jurist.org/student/2015/02/brittney-millay-florida-marriage.php.


This article was prepared for publication by Josh Guckert, a Senior Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org
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Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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