By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, June 26, 2015.

The Supreme Court just decided Obergefell, ruling that the Constitution recognizes a right to same-sex marriage. This impacts Florida’s same-sex marriage and divorce problem.

I’ve written about same-sex marriage and divorce cases often. In Obergefell, Justice Kennedy wrote the opinion for the majority:

First – The right to personal choice regarding marriage is inherent in the concept of individual autonomy.

Second – The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

Third – marriage safeguards children and families.

Fourth – Marriage is a keystone of our social order.

The majority holding:

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Chief Justice Roberts is the primary dissenter:

Petitioners make strong arguments rooted in social policy . . . But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.

Justice Scalia advocated judicial restraint:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito adds a twist:

[Today’s decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Obergefell v. Hodges can be read here.

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Monday, December 22, 2014.

Florida may recognize same-sex marriages and divorce beginning on January 6th. That’s because the U.S. Supreme Court refused to delay a lower court’s finding that Florida’s ban on same-sex marriages is unconstitutional.

The Supreme Court rejected the Florida Attorney General’s request to keep a district court judge’s stay order, which would have continued to stop same-sex couples from marrying. By denying the request, the Supreme Court cleared the way for gay marriages to begin.

The Supreme Court issued its order last Friday, in a short statement:

The application for stay presented to Justice Thomas and by him referred to the Court is denied. “Justice Scalia and Justice Thomas would grant the application for stay.

The stay order began in a ruling by U.S. District Judge Robert L. Hinkle, which I blogged about in August. Judge Hinkle ruled that Florida’s 2008 ban on same sex marriages is unconstitutional.

But as in many similar cases, Judge Hinkle stayed his own ruling to give the Attorney General time to appeal. That stay order is set to expire at midnight on January 5th.

Florida asked for longer stay in the 11th Circuit Court of Appeals, the federal appeals court which covers Florida, Georgia, and Alabama. But a three-judge panel declined to prolong the stay.

Neither the 11th Circuit nor the Supreme Court has ruled on the merits, and the Attorney General has expressed “confusion” over whether all 67 counties will issue marriage licenses to same-sex couples before appeals are settled.

The American Civil Liberties Union of Florida said it expects the state to fully recognize same-sex marriages once the stay order expires.

If the stay order expires, Florida would become the 36th state to recognize same-sex marriages. However, Florida filed an appeal with the 11th Circuit. That court has yet to hear, or schedule a hearing on, arguments on the merits.

CNN covers the issue here.

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, August 22, 2014.

Big news in Florida’s divorce marriage war. A federal judge in Florida ruled that the same-sex marriage ban was unconstitutional, and ordered Florida to issue a marriage license to a same-sex couple.

Specifically, the order:

Requires the Secretary of the Florida Dept. of Management Services and the Florida Surgeon General to not enforce Florida provisions on same-sex marriage;

Requires the Florida Surgeon General to issue a corrected death certificate showing a female plaintiff was legally married to another woman;

Ordered the Clerk of Court of Washington County to issue a marriage license to two men;

But then stayed enforcement of the order to take effect until 91 days after stays have been denied or lifted.

The court found that sexual orientation was not a suspect classification, but marriage was a fundamental right. The court applied a strict scrutiny test, which requires a compelling state interest, and found Florida’s law could not justify itself.

When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held.

-U.S District Judge Robert L. Hinkle

The judge stayed most of the effects of his ruling pending appeal. This means that nothing has changed as of yet. We are in a legal limbo in Florida. The judge added:

The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down.

The case involved individuals who sued Florida to recognize their marriages or grant them marriage licenses Defendants include Gov. Rick Scott and Attorney General Pam Bondi. A spokespman for the Governor said:

The Governor respects the many views Floridians have on this issue. He believes in traditional marriage, consistent with the constitutional amendment passed by voters in 2008.

This is the first federal decision in Florida. When the stay is lifted, it will have statewide impact, and more families will be protected under Florida law. They may apply and receive health insurance, pension benefits and other state rights now limited to different sex partners.

Judge Hinkle’s order is available here.