By: Sarah E. Coleman
Democratic legislators in both the Florida House and Senate are calling for committee hearings to repeal the state’s prohibitions on same-sex marriage.[1] Despite the U.S. Supreme Court’s decision in Obergefell v. Hodges[2], which secured the right to marriage equality, a repeal is necessary to safeguard the rights of same-sex couples.
In 2021, same-sex marriage bans remain in Florida’s constitutional and statutory framework. Following the federally-enacted 1996 Defense of Marriage Act, the Florida legislature passed the state-level version, which defined marriage as the “legal union between one man and one woman.”[3] In 2008, Florida voters, by a 61% margin, passed Amendment 2 to add the same definition of marriage to the Florida Constitution.[4] However, in 2014, a district court judge ruled that provisions of the Florida Constitution and statutes banning same-sex marriage violated due process and equal protection under the Fourteenth Amendment.[5] That same year, the U.S. Supreme Court denied the plaintiffs’ opponents request for a stay, thus setting the freedom to marry to take effect on January 6, 2015.[6] Then, on June 26, 2015, in Obergefell v. Hodges, the U.S. Supreme Court ruled in favor of marriage equality throughout the country by holding that marriage is a fundamental right and the Fourteenth Amendment requires states to license marriages between same-sex couples.[7]
Despite the judiciary’s role in securing marriage equality, same-sex marriage bans still exist in several states’ laws, including Florida’s. Since Obergefell, Allies for Equality Florida, an LGBTQ+ civil rights group, has introduced repeal proposals that have never advanced to the state’s legislature.[8] However, with 67% of Americans believing that same-sex couples should be legally valid, other state legislators have sought to repeal marriage bans.[9] In 2020, Virginia’s now-Democratic legislature passed bills repealing the state’s laws prohibiting same-sex marriage. However, because Virginia’s constitutional amendments must pass both houses and be approved by the state’s voters, the ban on same-sex unions remains in the state’s constitution.[10] Other states, like Indiana, have been unsuccessful in removing these marriage bans from their statutes due to GOP opposition.[11] Currently, Florida legislators are urging for the passage of HB 6017 or SB 558 to remove the obsolete state laws, with the chair of the Senate Judiciary Committee stating support for the bill and willingness to schedule the proposal if the House goes first.[12]
“This ban in Florida is outdated, hateful, and quite honestly, hurtful to families.”[13] Not only are the marriage definitions in Florida’s laws offensive to individuals who have earned federal recognition of their right to marry, but they convey the message that the state is not supportive of their rights. Further, erasing the same-sex marriage ban from the books is not only a symbolic undertaking, but a practical one. If Obergefell were to be overturned, Florida’s laws would allow such LGBTQ+ discrimination to be pursued in the state. Many individuals, including Florida state Rep. Michele Rayner, the only lesbian currently serving in the Florida legislature, fear that the now conservative-majority U.S. Supreme Court could threaten marriage equality precedent.[14] Florida’s prior unsuccessful attempts at repealing the bans on same-sex marriage demonstrates the exact need for the current proposals: there are legislators who oppose marriage equality or do not find it important enough to protect. Despite the labor-intensive removal process, Florida’s legislature should pass the proposals to repeal same-sex marriage bans to reflect its constituents’ growing acceptance of marriage equality.[15] The state’s sources of law should be stripped of their current definitions of marriage in order to promote equality under the law and protect LGBTQ+ rights in the future.
[1] James Call, ‘A horrible law’: Florida lawmakers seek repeal of defunct ban on same-sex marriage, Tallahassee Democrat (Feb. 12, 2021 3:29PM), https://www.tallahassee.com/story/news/politics/2021/02/12/florida-same-sex-marriage-ban-defunct-law-constitution-gay-lesbian-queer-supreme-court-judge/6736383002/.
[2] 576 U.S. 644 (2015).
[3] Fla. Stat. § 741.212(3) (2020).
[4] Fla. Const. art. I, § 27.
[5] Brenner v. Scott, 999 F. Supp. 2d 1278 (N.D. Fla. 2014).
[6] Armstrong v. Brenner, 135 S.Ct. 890 (2014).
[7] Obergefell, supra note 2.
[8] Call, supra note 1.
[9] Justin McCarthy, U.S. Support for Same-Sex Marriage Matches Record High, Gallup (June 1, 2020), https://news.gallup.com/poll/311672/support-sex-marriage-matches-record-high.aspx
[10] Julie Moreau, States across U.S. still cling to outdated gay marriage bans, NBC News (Feb. 18, 2020 19:44 AM),
[11] Id.
[12] Call, supra note 1.
[13] Jacob Ogles, Out Florida Rep Seeks to Repeal State’s Ban on Same-Sex Marriage, Advocate (Jan. 4, 2021 9:24 PM), https://www.advocate.com/politics/2021/1/04/out-florida-rep-seeks-repeal-states-ban-same-sex-marriage.
[14] Id.
[15] Robert P. Jones, Daniel Cox, & Juhem Navarro-Rivera, A Decade of Change in American Attitudes about Same-sex Marriage and LGBT Issues, Public Religion Research Institute (Feb. 26, 2014),
https://www.prri.org/wp-content/uploads/2014/02/2014.LGBT_REPORT.pdf (as of 2013, 57% of Floridians support marriage equality for same-sex couples).
