Rainbow flags with crowd In background during LGBTQ+ Pride Parade. Credit: Getty Images.
More than a decade ago, Florida voters approved a ban in the state’s Constitution on same-sex marriages, ratifying a declaration that marriage is only between a man and a woman.
That may surprise some folks because, since passage of that 2008 constitutional amendment, attitudes toward the LGBTQ+ community have shifted profoundly toward acceptance and equality in the eyes of federal law, especially in light of the 2015 U.S. Supreme Court ruling granting marriage equality, essentially nullifying the state ban.
On the other hand, hostility has been spiking towards LGBTQ+ folks, with the Republican-dominated Florida Legislature, with full support from Gov. Ron DeSantis, outlawing certain discussions of LGBTQ+ topics in Florida classrooms and local efforts to ban school library books that focus on characters within the LGBTQ+ community.
With the multitude of state and federal policies at play here, what does the state Constitution’s ban on same-sex marriages mean for the future?
Given the messy political context, it’s hard to say exactly.
Joe Saunders, senior policy director for statewide LGBTQ+ advocacy group Equality Florida, said that some of the pushback seen recently is a response to the progress toward equal rights.
“I think that the world has changed when it comes to marriage equality,” Saunders told the Phoenix. “And part of the politics on the Far Right that we’re experiencing now, the sort of the rabid, violent rhetoric — rhetoric like we haven’t seen in Florida, really even in the country, in 50 years — is a response to the progress that the LGBTQ civil rights movement has made. Not just winning policy fights, Supreme Court wins, major victories in city councils and county commissions. It is a response to the cultural progress that we’ve made.”
During the 2008 general election, Florida voters were presented the proposed constitutional amendment to exclude same-sex couples from the definition of marriage under the law.
As a refresher in Florida politics during that election cycle, that is the same year 51 percent of Florida voted for Democratic President Barack Obama, according to state election data.
Meanwhile, former Florida Gov. Charlie Crist was in the middle of his term. He supported the amendment, a move he has since apologized for, according to a 2014 report from CBSMiami.
The measure was called “Florida Marriage Protection Amendment” and it passed, gaining approval from 61.9 percent of voters. According to data from the Florida Division of Elections, some 4,890,000 voters approved the measure while 3,008,000 voted against it.
To this day, the Florida Constitution reads: “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.”
The U.S. Supreme Court ruling in Obergefell v. Hodges, striking down anti-marriage equality laws, rendered the amendment toothless, but LGBTQ+ advocates have fresh reason for concern. And, again, the U.S. Supreme Court is responsible.
Florida is not the only state with a state-wide ban on same-sex marriages. States Newsroom, the nonprofit news network that includes the Florida Phoenix, has reported that 30 states still have bans against same-sex marriages in state constitutions or laws.
Justice Clarence Thomas called that guarantee into question in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, in which the court overturned Roe v. Wade, ending the constitutional right to abortions. The entire court didn’t go along with Thomas’ reasoning, but he suggested the court consider revisiting a range of precedents finding unenumerated privacy rights (those not specifically written down in the Constitution) to access contraception, homosexual conduct, interracial marriage, and — yes — marriage equality.
Sen. Tina Polsky, a Democrat who represents parts of Broward and Palm Beach counties, said that she hasn’t yet heard of any interest among Florida lawmakers to revisit same-sex marriage in Florida one way or another.
“I can’t point to any Florida legislators who have said such, but it wouldn’t shock me if somebody didn’t propose it, because it’s just sort of out there in the atmosphere now,” she told the Phoenix. “And I can certainly understand where LGBTQ spouses are concerned that Florida could go down that path at some point in time if the Supreme Court does change their mind.”
She added: “I think that they [Florida’s LGBTQ+ community] should be concerned and they should vote accordingly, because it is very clear that our current state leadership is targeting the LGBTQ community, so this could be something down the line.”
Following the November 2022 elections, both the Florida House and Senate have Republican supermajorities.
To add another layer of complexity, the U.S. Congress is working to add additional protections for same-sex marriages in case the U.S. Supreme Court overturns Obergefell. Just last week, the U.S. Senate approved what’s known as the Respect for Marriage Act, with a dozen Republicans on board.
“It [Respect for Marriage Act] would ensure that if the U.S. Supreme Court were to overturn the cases that have legalized same-sex and interracial marriages, the federal government would continue to recognize those unions, a step necessary for hundreds of federal benefits including Social Security and veterans’ benefits,” States Newsroom reported.
“The bill … would require states to recognize same-sex and interracial marriages performed in states that keep the unions legal, though it wouldn’t require states to keep same-sex or interracial marriages legal if the U.S. Supreme Court were to overturn those cases.”
The Respect for Marriage Act needs to still be passed by the U.S. House of Representatives.
Saunders, with Equality Florida, said that while he thinks overall attitudes towards LGBTQ+ people and their marriages have shifted, the future of same-sex marriages in Florida could be at risk.
“I think it would be fair to say that if Obergefell were overturned and the Respect for Marriage Act was not passed, that effectively the state’s Defense of Marriage Act and the state of Florida’s constitutional amendment banning marriage equality would take effect, and access for future couples to marriage equality would be banned,” he said.
