Gay law in Florida

On June 26, 2015, the United States Supreme Court ruled that same-sex couples have a fundamental right to marry and divorce in every State, including Florida. Florida’s longstanding public policy has firmly been against same-sex marriage, but with the United States Supreme Court’s recent decision, Florida’s laws now must give way to the rights of same-sex couples under the United States Constitution.

Ideally, the State of Florida will allow same-sex couples to exercise their rights without complication going forward. However, the State of Florida has not historically favored allowing same-sex couples to marry or the recognition of same-sex marriages, same-sex couples. Since 1977, the Florida Statutes have explicitly prohibited gay marriage and, since 1997, have explicitly prohibited the recognition of same-sex marriages for any purpose. Additionally, in 2008, the Florida Constitution was amended to restrict the definition of marriage to include only a marriage between a man and a woman. Consequently, with same-sex marriages only recently established as a right nationwide, gay Floridians have a period of transition ahead of them while the State deals with rapid change. Same-sex couples should thus be prepared for complications when applying for a marriage license, getting married, attempting to reap the legal benefits of marriage, or obtaining a divorce.

With the United States Supreme Court handing down its opinion in Obergefell v. Hodges,1 the citizens of Florida now have a firm answer to the question, “Is gay marriage legal?” The answer is “yes.” Same-sex couples “may exercise the fundamental right to marry in all States.”2 Further, “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”3 Thus, same-sex couples in Florida are guaranteed the right to marry and divorce by the United States Constitution. The provisions of Florida’s Statutes and Constitution, which have been previously discussed (link to prior entries), can no longer be used to prevent same-sex individuals from exercising this right.4 The United States Supreme Court has firmly established that all gay Floridians are entitled to the same benefits of marriage/divorce as heterosexual Floridians. All of Florida’s county clerks are now required to issue marriage licenses to same-sex couples and no Florida court may refuse to grant same-sex spouses a divorce on the basis that Florida law does not recognize same-sex marriages.

The decision in Obergefell v. Hodges is obviously one of great historical and legal importance. With this decision comes a major nationwide change in the status quo and resistance some to this change. While it is anticipated that gay Floridians will no longer have trouble obtaining a marriage license or dissolving their marriages, it is not far-fetched to expect that some government employees/officials unfamiliar with the new law of the land or otherwise personally opposed to same-sex marriage may still hinder same-sex couples from exercising their newly established rights. Additionally, bureaucratic problems may arise from this change in the law. Consequently, gay Floridians should understand that they may still face some unique “bumps in the road” when dealing with matrimonial issues and should consider contacting an attorney if they encounter resistance to the exercise of their rights.

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1. Obergefell v. Hodges, 14-556, 2015 WL 2473451 (U.S. 2015).
2. Id. at *23.
3. Id.
4. The laws which previously prevented same-sex couples from exercising the right to marry and divorce are Art. I, § 27, Fla. Const., § 741.212, Fla. Stat. (2014), and § 741.04(1), Fla. Stat. (2014).