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Thursday, July 17, 2014

Marriage equality in Florida

Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.

Several quick thoughts:

1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.

2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.

3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.

4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?

Posted by Howard Wasserman on July 17, 2014 at 04:05 PM in Constitutional thoughts, Howard Wasserman | Permalink


1) It's Key West. He's a long time judge and won't be going anywhere. Certainly not over this decision.

2) Bondi will likely win AG re-election and will fight this to the end.

3) While the 3d DCA and FL Sup Ct will all have length reviews, this case is huge. There's a similar case in Miami right now and I assume that judge will wait until the 3d affirms before making her decision. If Judge Garcia went the other way, the same result for Miami Circuit Court as well. This decision is he and I think sets the tone for how the state will go down. Monroe County, notwithstanding its reputation, is a politically conservative county.

4) I don't see how we can go back on Equal Protection claims now. Regardless what the majority wants, the courts are pretty uniformly striking SSM bans.

Posted by: Marc | Jul 19, 2014 3:30:48 PM

I think panels could be assembled on most circuits (including the 10th, a panel of which ruled in favor of SSM), that would uphold SSM bans. I think at least 3 and probably 4 members of the Court will vote to uphold them, and that there's something like a 1/4 chance that a majority will.

Posted by: Asher | Jul 17, 2014 8:38:15 PM

I think it is "remotely possible" at least that the 11CA would be an outlier here, especially after it UPHELD a sex toy ban after Lawrence.

It would be interesting to see how the 4CA, 5CA and 11CA handle SSM cases. There has been one circuit ruling (a 9CA ruling is sorta pro forma after it held sexual orientation warrants heightened scrutiny) so far post-Windsor. The dissent was rather wan, partially focused on Baker v. Nelson still being good law.

Posted by: Joe | Jul 17, 2014 6:40:33 PM

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