Florida’s LGBT advocates explore options for overturning state’s marriage ban 

In the wake of the DOMA decision, LGBT Floridians navigate rocky road to equality

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There was certainly cause for celebration as an estimated 5,000 people, many wearing red shirts, crowded around the Lake Eola bandshell on June 27 for a hastily assembled Marriage Equality Rally, pulled together to show support for same-sex marriage. The event came just one day after the historic U.S. Supreme Court ruling on the Defense of Marriage Act in U.S. v. Windsor, a major decision that ruled that the denial of federal benefits to same-sex married couples was unconstitutional and, on top of that, insulting. It was a sentiment echoed in most of the speeches given at the rally, a sort of exasperation after 40 years of fighting for federal recognition for LGBT couples. It was a long time coming.

“We will not stop until every couple has the right to live their lives out loud,” former Orlando police chief and potential Orange County mayoral candidate Val Demings intoned. “We are not going anywhere.”

And it’s a good thing because, even though the Supreme Court decision turns DOMA on its head, Florida’s state constitution places a ban on gay marriage. Passed by popular vote in 2008, Amendment 2 ensures that the rights of gay couples in the Sunshine State are still being denied. A handful of federal rights are legally up in the air for same-sex couples who were married in one of the 13 states where gay marriage is legal but are residing in Florida – specifically those rights involving immigration, federal employee benefits, and military and civilian staffers of the U.S. Department of Defense – but the lion’s share of the 1,138 rights conferred by civil marriage remain out of reach for same-sex couples.

On the same day that the Supreme Court ruled on Windsor, it punted on the Proposition 8 case: It allowed California to resume gay marriage, but did nothing to roll back the marriage bans in the constitutions of 35 states that passed them. As a result, a national consortium of civil liberties and gay rights groups are attempting to devise a strategy to move the issue forward, while individual states simultaneously launch their own initiatives. Though there are glimmers of hope, each requires significant patience, money and luck. The perceived inevitability of marriage equality isn’t enough to move policy. For Florida, all three paths to equality present a quagmire – Tallahassee, the federal courts, even popular referenda have skewed historically conservative – and maintaining the momentum of Windsor’s symbolic victory will be difficult.

Even now, nearly a month after the historic decision, the urgency of marriage equality for all seems to be fading from the media spotlight. Equality advocates are speaking in soft tones about patience and timing – we have to do this right, we can’t afford to screw up – while LGBT couples anxiously try to cobble together the scraps of rights that may or may not be granted to gay Floridians who were legally married in other states. In just one month’s time, we’ve gone from a historic leap to the dread of an inevitable slog. These are the pathways to real equality being discussed in Florida. None of them will be easy.

Take it to Tallahassee

This one is a long shot, given the state’s conservative leadership, but the Florida legislature could play a role in advancing marriage equality through procedural acts, says state Rep. Joe Saunders, D-Orlando.

“The legislative remedy to the problems that come from the lack of marriage in Florida are limited,” he says. “The state legislature could put a repeal of Amendment 2 on the ballot. They could also repeal the DOMA statutes so that, if and when the [state] constitutional amendment is repealed, we don’t have that one more barrier to move through. I think both of those things are unlikely.”

What is likely, however, is that the old lines of reasoning against gay rights on moral grounds will be affected by the Supreme Court decision. As a result, some legislators may feel more compelled to act on less controversial provisions than full equality, if only to save face.

This year, for example, Saunders was able to convince moderate state Rep. Holly Raschein, R-Key Largo, to co-sponsor the Florida Competitive Workforce Act, which would have prohibited employment discrimination based on sexual orientation or gender identity. He suspects that further movement on gay rights bills – including a proposed statewide domestic partnership registry that died in the Florida Senate this year – could come as a result of shifting opinions, both on national and local fronts.

“I think you can’t ignore the fact that one-third of the country now lives in a place where full marriage equality exists, where gay and lesbian families and the people who support them are completely embraced,” he says. “And you juxtapose that to Florida, and all of the sudden we feel a lot more like we’re in the dark ages than we did a [few weeks] ago.”

That slow persuasion isn’t enough for some in Florida. Immediately following the Supreme Court decision, Democratic gubernatorial hopeful Nan Rich hopped on the equality bandwagon, writing a ban repeal into her platform. (Her presumed Democratic primary challenger, Charlie Crist, recently came out in favor of gay marriage after supporting the ban in 2006 and 2008.)

Somewhat more perniciously (and equally political in nature), the group Equal Marriage Florida recently filed paperwork to launch a petition drive to attempt to remove the marriage ban from Florida’s constitution in 2014. Equal Marriage Florida is a subsidiary of Our America, a libertarian group co-chaired by former New Mexico Gov. Gary Johnson, a 2012 presidential candidate who is rumored to be vying for the office again in 2016. That group would have to get 681,000 verified signatures by Feb. 1 in order to be considered for the ballot, a feat that critics think to be a near impossibility. Groups like Equality Florida and Freedom to Marry have been critical of the petition drive, mostly because there isn’t enough time, but also because the expense to run such a campaign might not be rewarded with the desired results. Though 75 percent of Florida voters polled by Public Policy Polling in March said that they favored either civil unions or same-sex marriage, estimates for full marriage support typically fall beneath the 60 percent a ballot initiative would require.

The splintering of gay rights groups echoes a similar schism in 2008 that helped Amendment 2 pass in the first place. Fairness for All Families, a political arm of gay rights group Equality Florida, came up against a better-funded Florida Red and Blue, an independent group with deep Democratic pockets, in its efforts to stop Amendment 2 in 2008. Rather than join forces with Fairness for All Families, the latter organization decided not to include gay couples in its campaigning against the measure because it was afraid to court controversy. In the end, even Florida Red and Blue’s extensive spending (nearly $4 million) couldn’t spare the state from a marriage ban, something many at the time suggested was a direct result of the organizations not being able to work together.

“Personally, I doubt our ability to pull it together by 2014,” Saunders says of the current petition drive suggested by Equal Marriage Florida. “I think we should be in a place where we’re looking at the entire landscape, where we’re looking at every strategy. If there’s a legal strategy to tackle Amendment 2, we should pursue that strategy, if it’s a legitimate one. If there’s a legislative strategy, if all of the sudden we went up there and realized maybe the Senate President and Speaker [Will] Weatherford wanted to put it on the ballot to get it out of their conversation and let the people decide, that’s a legitimate strategy.”

“I think in four years we’ll have even more momentum,” he says.

The courts

The prevailing wisdom is that the shortest distance between here and equality – at least in Florida – will be through litigation in a federal court. Orlando civil rights attorney Mary Meeks has been part of a national working group strategizing the best point of entry to propel marriage equality in Florida. She stresses that even though the Windsor decision has significantly changed the playing field, any case filed against the state of Florida would still face one of the most conservative courts at the U.S. Court of Appeals for the 11th Circuit in Atlanta. That shouldn’t prevent advocates from trying, says Meeks, because the only way Florida can be directly ensured same-sex marriage rights – other than another state’s case going all the way to the U.S. Supreme Court and nullifying all the nation’s marriage bans – is for somebody in Florida to sue the state.

“I don’t see any negative from us taking a whack at it,” Meeks says. “We do want to be careful and pick the right lower court where we have the best chance of drawing a judge or a court that would be favorable. We want to be careful about who we choose to be our plaintiffs. These are the logistics we’re considering right now.”

Federal cases have been filed in Nevada, Hawaii, Michigan and Pennsylvania, among others, so the outcomes of those arguments could be useful in framing a Florida case, according to Meeks. And given the costs of bringing a case of this nature all the way up through the system, it would behoove Florida advocates to be cautious. Also, because the dust is still settling on just what federal rights will become available to same-sex Florida couples who were legally married elsewhere, some parameters about ideal plaintiffs are still in question.

In a statement issued on July 9, the national group Freedom to Marry bypassed Florida in its list of goal-states through 2016, saying, “Freedom to Marry is working to win four states by 2013-2014 – Hawaii, Illinois, New Jersey and Oregon – and laying the groundwork to win at least six more states by 2015-2016 (some mix of Arizona, Colorado, Michigan, Nevada, New Mexico, North Carolina, Ohio, Pennsylvania and Virginia), while teeing up states for post-2016 (and recognizing that others could be added to the mix based on changing circumstances). With strategic lawsuits to be filed, Freedom to Marry will continue to work closely with our legal partners on state-specific public engagement strategies.” The group estimates that its three-year initiative will cost upward of $100 million.

Wherever the cases are brought, the arguments are likely to be the same. “We now have the U.S. Supreme Court saying – it’s not exactly on point, and it’s not exactly the same issue – but you have the court saying that it is unlawfully discriminatory to treat married gay couples differently than married straight couples,” she says, “unless the state can prove some legitimate governmental reason for doing that.”

In effect, she continues, the roles have been reversed. Where previously, the presumption was that the government was acting legitimately on any gay issue, now the state will be required to justify its discriminatory actions.

“Any government that has discrimination – and there’s no way to say that marriage amendments are not discrimination – it’s now going to be incumbent upon the state to have to come up with some legitimate governmental interest served by that,” Meeks says. “And it cannot be moral disapproval or ‘We think heterosexual couples are somehow more deserving.’ You can’t even argue that anymore. That is out of the box.”

But as promising as that argument sounds, warns Daniel Tilley, LGBT policy strategist for the American Civil Liberties Union of Florida, Florida residents shouldn’t get their hopes up for anything extraordinary anytime soon.

“The important takeaway is that there is great language in that [Windsor] opinion, but there’s also bad precedent in the 11th Circuit, which is where we live,” he says.

On July 16, a coalition of national- and state-level equality advocates (including the ACLU) released a statement warning against litigious haste. “Premature lawsuits filed by individuals without considering all of these factors could be very harmful to this effort,” the statement read. “A federal appeals court is unlikely to revisit its own recent rulings, and an adverse decision could set the goal back for years or even decades.”

Hearts and minds

Exactly one week before the Supreme Court decision, Equality Florida and Freedom to Marry launched Get Engaged (imengaged.org), an online initiative with the dual purposes of fundraising and encouraging more real-life discussions about the difficulties same-sex partners face in Florida.

“There has to be strategy and a realistic look at where we are,” Equality Florida executive director Nadine Smith says. “The reason Get Engaged is so important is that it is a strategy that has worked in every place – not in the antiseptic language of rights, but in the universal language of love and commitment and family. That’s the important conversation that happens right now. We have to tell the truth about who we are.”

The initiative was launched in advance of the ruling, Smith says, “because we wanted people to understand that, for those of us living in Florida, the victory would not fully encompass us.” The campaign, she adds, has already produced more than 400 couples who are willing to be named as plaintiffs should the group decide to file a lawsuit. In some sense, it’s a means to harbor momentum from the Supreme Court ruling, and to make people feel like they’re doing something to further the cause.

Smith says she realizes that it isn’t the sexy “hard-knuckled political brawl” that grabs the headlines, but she says the slow-and-steady approach has resonated and that’s reflected in the adoption of local domestic-partnership registries and anti-discrimination ordinances. It has forced people to acknowledge that they enjoy rights that others don’t, and it’s framed the debate around humanity rather than policy. “People can campaign with facts and figures,” she says. “But they don’t get to debate their feelings about what happened to you.”

“If you ask people point-blank what protections should your child have that my child should not – we have to call out that question and make them answer that question, because when people are compelled to think about it in those terms, things change,” she says.

For local couple Angie and Tanya Blasingame, the change can’t come soon enough. The two had a commitment ceremony in Orlando in 2005, and were legally married in last year in Massachusetts. They have a 4-year-old daughter together – Angie had the baby, and Tanya adopted as a second parent – and Tanya went to court to change her last name. Asked if they’d be willing to be a plaintiff in an upcoming case, Angie says probably not, mostly for financial reasons.

“I wish we could, but you have no idea how expensive it’s been for us to do any of this,” she says. “We got Tanya’s name changed after the first ceremony; that cost money. It cost money to get the license. It cost a bunch of money to have a child, and for the adoption. We don’t have a lot left. People take for granted how easy it is for them.”

And though the couple was initially excited about the Windsor ruling, they’re still waiting to figure out whether it will someday affect them and their daughter.

“You have that initial moment of ‘Oh my God, this is so exciting.’ You’re cheering with the rest of the country, and then you’re like, wait a minute. But then I always feel like a Debbie Downer,” Tanya says. “I don’t know what it means for us. I know the state ban does seem to supersede everything, and I know that our lovely governor is going to do everything he can to see to it that doesn’t change. I think we do need it broken down in simple terms. Can we file our taxes together? I don’t know.”

To some degree, they didn’t expect much more than they will apparently get. “It’s just a horrible attitude to have, but you know, after you’ve been kicked down so many times,” Tanya says.

“I think the two of us have both educated a lot of people, just by knowing them and talking to them,” Angie says. “People just don’t know. They just don’t understand.”

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