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Lawyers Warn of Dire Consequences if Gay Marriage Ban Amendment Passes |
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Written by David L. Wylie
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 An open letter to Florida voters from over 150 lawyers warn that all citizens, regardless of sexual identity, could be adversely affected if the so-called Gay Marriage Ban is enshrined in the state constitution. Click to read the letter in its entirety.
Fellow Floridians:
We, the undersigned Florida attorneys, sign this letter to publicly share our concerns about the vague language and potentially damaging consequences of the proposed Constitutional Amendment 2 and urge our fellow Floridians to join us in opposing its inclusion in the Florida Constitution. Amendment 2 is called the “Florida Marriage Protection Amendment” and is often referred to by the media as a “gay marriage ban.” The proposed amendment is:"Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."
Florida Law Already Prohibits Same-Sex Marriage
References to ‘marriage protection’ or ‘gay marriage bans’ are misleading as four existing Florida statues [FS 741.212 (1), 741.212 (2), 741.212 (3) and 741.04] already define marriage as the union of a man and a woman or otherwise prohibit the creation or recognition of ‘same-sex marriages.’ The legality or recognition of ‘same-sex’ unions in Florida will be no more or less illegal in Florida regardless of the outcome of the proposed amendment.
Ambiguity in Amendment Language Will Likely Result in Unanticipated and Serious Economic and Legal Repercussions
Our chief concern is the section of the proposed amendment which states: “…no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”
We agree with the 2006 report of the Florida Legislative Office of Economic and Demographic Research (EDR) which concluded: “The amendment provides no definition for the phrase ‘substantial equivalent thereof,' which lends to the ambiguity of the wording of the proposed amendment.”
Adding such vague, untested and undefined language is likely to deliver unanticipated repercussions and could substantially alter our state both economically and legally. Quoting the EDR report on Amendment 2 again, it warns, "Depending on actions taken by the Legislature, the courts, and Florida businesses, financial obligations between individuals are expected to change in complex ways…”
Potential Loss of Existing Legal Protections and Benefits for All Floridians. - Alimony: In 2005, the State Legislature adopted new law designed to prevent a loophole where a former spouse receiving permanent alimony opts to cohabitate with a new partner rather than remarrying and continues to receive permanent alimony. Under this relatively new divorce law, a former spouse’s alimony obligation may terminate if the recipient spouse enters into a “supportive relationship” with another person. Florida case law defines a supportive relationship as one that provides “support equivalent to marriage”. Clearly, “support equivalent to marriage” is dangerously similar to “substantial equivalent to marriage”. The portion of Florida Statute 61.14 recognizing a relationship providing “support equivalent to marriage” could be held unconstitutional under Amendment 2. As a result, every former spouse who is either Court Ordered or who signed an agreement to pay permanent alimony could be required to continue paying alimony despite the fact that the receiving spouse has found a new partner. At the very least, these individuals will face a costly Court battle trying to uphold their agreements and to terminate their alimony obligations.
- Domestic Violence Protection: Other potential impacts include using Amendment 2 as a defense to domestic violence on an unmarried partner (a similar amendment was used as a domestic violence defense in Ohio). Quoting the EDR again, "By invalidating any union or ‘substantial equivalent thereof,' this amendment could be raised as a defense in domestic violence cases, resulting in fewer domestic violence convictions."
- Private Property Arrangements and Estate Planning: Without examining every potential consequence in great detail, it is possible that Amendment 2 could also have profound implications on the ability of citizens to share property or pass on assets, establish trusts or other legal arrangements or even remarry. Especially likely to be impacted by this outcome are Florida’s senior citizens and retirees who remain unmarried by choice and share pension benefits or other government benefits they have earned.
- Domestic Partnership Registries: This vague and broad language could also risk termination of the several established domestic partnership registries which are currently accessible to millions of Floridians. These registries allow unmarried Floridians to share benefits or other protections such as hospital visitation, burial rights and health care benefits. The non-partisan and independent EDR report again sites this concern in finding: “If domestic partnership registries are deemed substantially equivalent to marriage, their termination could place registrants at risk of losing specified rights and benefits, such as those related to health insurance."
While no one can know the full impact of the proposed amendment, litigation will result as vested interests challenge shared health plans, defend domestic abusers or governments seek clarity to the undefined language in the proposal. Even if every warning and potential outcome proves unfounded, the years of uncertainty and sheer legal expenses would be costly and unnecessary. As attorneys, our legal education and experience make us hesitant to support the vague and untested language in Amendment 2. Adding such a provision to our Constitution is unwise, especially when adopting the amendment will not alter our state’s current laws banning ‘same-sex marriage.’
As Floridians, we are concerned by the range of impacts Amendment 2 could have on us and our neighbors. It’s simply not worth risk that Amendment 2 could take away existing legal protections and benefits from even a single Floridian.
Accordingly, we strongly oppose the adoption of Amendment 2 and ask our legal colleagues and all Florida voters to join us in speaking out and voting against this dangerous provision. With regards and thanks for your attention,
| Ramon Abadin | Lawrence Abramson | David Ackley | | W. Cleveland Acree, II | Angie Angelis | Mary Merrell Bailey | | Greg Baldwin | Patricia Baloyra | Lori Barkus | | Jeff Battista | David Jay Bernstein | Margaret Bettenhausen | | Garry Bevel | Brian Bilzin | Michael Birnholz | | Edward Blaisdell | Jonathan Blecher | Stacy Borisov | | Susan Bozorgi | Rutledge Bradford | Mark Brandt | | Nancy Brodzki | Kenneth Bryk | Jeffrey Buak | | Peggy Smith Bush | O. Kim Byrd | Taysha Carmody | | Jerry Chasen | Edward Conrad-Waggoner | Leslie Cooney | | Eric Copeland | Penelope Crandall | Earl Crittenden | | Chad Cronon | Thomas Cushman | Talbot D'Alemberte | | David da Silva Cornell | Patrick Daugherty | Jacqueline Kelley Davis | | Shelbi Day | Deirdre Dibiaggio | Roger Dodd | | Karen M. Doering | Michael Dolce | Robert Dougherty | | D. Michael Elkins | Sarah Engel | Michael Feiler | | David Finkelstein, Attorney and | Beth Fountain | Fredrick "Rick" Freedman | | RICK FREEDMAN | Ellen Freidin | Jaime Generazzo | | Judd Goldberg | Michael Gongora | David Goroff | | Mark Grant | Sandra Greenblatt | Ron Gunzburger | | Robert Hasty | William Hill | Donald Hinkle | | Mary Hoftiezer | Patrick Howell | Yosbel Ibarra | | harry jacobs | Russell Jacobs | Kathryn Kasprzak | | Broward Co. Comm. Ken Keechl | Kristyne Kennedy | Georg Ketelhohn | | Robert Kohlman | Judith Koons | Joel Kopelman | | Jeremy Korch | John Kozyak | Benedict P. Kuehne | | Edward Lack | Stephan Lampasso | Shawn Libman | | Peter Lichtman | Joanne Linley | Lisa London | | John Lord, Jr. | Sheryl Lowenthal | Wallace Magathan | | Chris Mancini | Shana Manuel | David Marko | | Lee Marks | Yery Marrero | Michele Martin | | Natalie Maxwell | Liz McCausland | Blaine McChesney | | Nicole McLaren | Carrington Mead | Mary Meeks | | Jeffrey Miller | Richard Milstein | Sa Mollica | | Regine Monestime | Michael Morris | Gregg Morton | | Anthony Niedwiecki | Anne O'Berry | Lynn Overmann | | Patsy Palmer | Marshall Pasternack | Andrew Patten | | Richard Pettigrew | Laura Pichardo | Lorene L. Clemans Powell | | Sam Rabin | Brett Rahall | oliver ramos | | Patricia Rathburn | Mycki Ratzan | Gary Resnick | | Philip Richardson | Miriam Richter | Joel Robrish | | Robert Rossano | John Ruffier | John Ruffier | | Mauro Santos | David Schauer | Scott Schlegel | | Warren S. Schwartz | Mark Scott | Joseph Seagle | | Larry Smith | Scott Sokol | Neal Sonnett | | Kelly Spegon | Robert Spohrer | Helen Spohrer | | Carey Stiss | Kimarie Stratos | John Sumberg | | Matthew Tabakman | Jeremy Thompson | Jonas Urba | | Matthew Walker | Philip Wallace | Peter Wallace | | Roberta Watson | James Weinkle | Patricia Welles | | Crystal Whitescarver | mitchell widom | Marva Wiley | | Camille Worsnop | |
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