Frames:
FOR BETTER OR FOR WORSE: A CRITICAL ANALYSIS OF FLORIDA'S DEFENSE OF MARRIAGE ACT

MICHAEL J. KANOTZ[*]

Copyright (c) 1998 Florida State University Law Review

I. INTRODUCTION
II. A BRIEF HISTORY OF SAME- SEX MARRIAGE
III. FROM HAWAII TO WASHINGTON TO TALLAHASSEE: THE LEGAL HISTORY AND DEVELOPMENT OF FLORIDA'S DEFENSE OF MARRIAGE ACT
A. Baehr v. Lewin
B. Washington Responds: The Defense of Marriage Act of 1996
C. Florida's Defense of Marriage Act
IV. FLORIDA'S DEFENSE OF MARRIAGE ACT AND THE PRIVACY AMENDMENT TO THE FLORIDA CONSTITUTION
V. FLORIDA'S REFUSAL TO RECOGNIZE SAME- SEX MARRIAGES AND THE UNITED STATES CONSTITUTION
A. Substantive Due Process
1. The Fundamental Right to Marriage
2. Bowers v. Hardwick: Lack of a Fundamental Right
3. Romer v. Evans
B. Equal Protection of the Laws
1. Intermediate Scrutiny and Gender Classifications
2. Strict Scrutiny and the Fundamental Right of Marriage
3. Rational Relationship Review
VI. FLORIDA'S CONSTITUTIONAL DUTY TO RECOGNIZE SAME- SEX MARRIAGES LEGALLY SANCTIONED IN OTHER STATES
A. The Right to Interstate Travel
B. Defense of Marriage and the Full Faith and Credit Clause
VII. CONCLUSION

I. INTRODUCTION

Marriage is one of the main building blocks in the structure of modern society. Many rights and benefits are bestowed upon those speaking the sacred vows: inheritance rights, evidentiary privileges, medical decision-making powers, social security benefits, and employer or state provided health benefits, to name a few.[1]

Same-sex marriage ceremonies occur daily in this nation.[2] Several major religions in the United States recognize same-sex marriages, including the Reformed Jewish, Unitarian Universalist, Episcopalian, Lutheran, Presbyterian and Methodist churches, among others.[3] Currently, the United States denies legal recognition to same-sex marriages.[4] This reflects America's long-standing persecution of homosexuals.[5]

There are, however, indications that the country is moving towards change. For example, major cities such as San Francisco and Atlanta have adopted domestic partnership laws to grant same-sex partners some of the legal benefits of marriage.[6] A Florida court recently ruled that same-sex couples could lawfully contract with each other for a "permanent sharing of, and participating in, one another's lives" even though the couple "undoubtedly expected a sexual relationship."[7] Moreover, some large American companies, such as the Walt Disney Company, have begun offering employee benefits, typically only offered to married couples, to domestic partners of homosexual workers.[8] Finally, the state of Hawaii may become the first state to legally recognize same-sex marriages.[9]

Despite the advances made toward legal recognition of same-sex marriage in local government and the courts, a backlash has occurred in the federal and state legislatures. This Comment examines this backlash and the legal recognition of same-sex marriages. It focuses particularly on section 741.212, Florida Statutes, the Defense of Marriage Act (Act).[10]

Part II presents a brief introduction to the history of same-sex marriage. Part III examines the Act and the legal framework it addresses. Part IV examines the constitutionality of the Act pursuant to the Florida Constitution. Part V examines the constitutionality of the Act pursuant to the United States Constitution. Part VI analyzes Florida's duty to recognize same-sex marriages legally sanctioned in other states pursuant to the United States Constitution.

II. A BRIEF HISTORY OF SAME- SEX MARRIAGE

The current wave of same-sex couples entering into sacred vows is not the birth of a new institution; rather, it is the expansion of an institution practiced throughout the world.[11] Same-sex unions have existed for some time in most cultures, including early Western culture and the early Christian church.[12] Pre-Columbian Native Americans participated in same-sex unions.[13] Legitimized same-sex unions also existed in Chinese and African cultures.[14] In addition, there exists evidence of same-sex unions in Mesopotamia[15] and ancient Rome.[16]

Considering the opposition to homosexuality exhibited by some modern denominations of Christianity, the most striking historical evidence of same-sex marriages arises from the doctrines of the early Roman Catholic and Greek Orthodox churches.[17] In the early middle ages, same-sex marital liturgies existed in the church's formal collections virtually identical to those for different-sex marriages.[18] These ceremonies, performed by priests in Catholic churches, were widespread in the fifth century.[19] Evidence of same-sex marriage ceremonies existed through the nineteenth century.[20]

However, contempt for same-sex relationships began during the fall of the Roman Empire.[21] Beginning in the thirteenth century, the persecution of homosexuals became more rampant, as did that of other "non-conformists" such as Jews, heretics, and witches.[22] By the sixteenth century, some of the male same-sex couples who were married at the Church of St. John in Rome were later burned at the stake in the city square.[23] By the nineteenth century, heterosexuality became viewed as "normal" by modern science and homosexuality ultimately became viewed as pathological.[24] Thus, same-sex unions were restricted and viewed as damaging to the psyche.[25]

Evidence of same-sex marriages, though not legally sanctioned, appeared in the United States during the eighteenth century.[26] "Legal" same-sex marriages also occurred surreptitiously when one woman would disguise herself as a man.[27] When greater numbers of homosexuals began coming "out of the closet" in the 1950s, many modern American religions began endorsing same-sex marriages and performing actual same-sex marriage ceremonies.[28]

III. FROM HAWAII TO WASHINGTON TO TALLAHASSEE: THE LEGAL HISTORY AND DEVELOPMENT OF FLORIDA'S DEFENSE OF MARRIAGE ACT

A. Baehr v. Lewin

The case of Baehr v. Lewin[29] arose when Hawaii denied three same-sex couples marriage licenses on the grounds that same-sex marriages are invalid under Hawaii law.[30] The Hawaii Supreme Court ultimately ruled that the state's prohibition of same-sex marriages, on its face, discriminated on the basis of sex in violation of article I, section 5 of the Hawaii Constitution.[3]1 The Baehr court considered the mere mention of sex within the statute as discriminatory, stating: "HRS section 572-1, on its face and as applied, regulates access to the marital status and its concomitant rights and benefits on the basis of the applicants' sex. As such, HRS 572-1 establishes a sex-based classification."[32]

In his answer brief, the director of the Hawaii Department of Health argued that "the right of persons of the same sex to marry one another does not exist because marriage, by definition and usage, means a special relationship between a man and a woman."[33] The court rejected this argument by relying upon the U.S. Supreme Court's analysis in Loving v. Virginia,[34] in which the Court ruled Virginia's anti-miscegenation statute unconstitutional.[35] The Hawaii court found the reasoning of Loving analogous since the Virginia statute characterized marriage as a relation only between persons of the same race.[36]

The Baehr court also considered whether the right to privacy under the Hawaii Constitution included a right to same-sex marriage.[37] The court looked to the fundamental right of marriage under the Due Process Clause of the U.S. Constitution and concluded that the right was not inclusive of same-sex marriage.[38] The court found that the right to same-sex marriage was not "so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice."[39] The court did not directly consider whether the prohibition would violate the privacy jurisprudence of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.[40]

The Hawaii Supreme Court remanded Baehr to the circuit court to determine whether the regulation in question Sfurthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."[41] In late 1996, the Hawaii circuit court released its opinion containing extensive findings of fact and conclusions of law.[42] The circuit court found that the state failed to present evidence of a legitimate public purpose and enjoined the Hawaii Department of Health from denying marriage licenses solely on the basis of sex.[43]

The circuit court's decision is presently on appeal to the Hawaii Supreme Court, which may affirm the ruling and end Hawaii's refusal to recognize same-sex marriages. However, after the circuit court announced its decision the Hawaii Legislature took action. It passed a broad domestic partnership package for homosexual couples and placed a referendum on the November 1998 ballot that would allow the Legislature to "reserve marriage to opposite-sex couples."[44] If approved by the Hawaii electorate, the amendment will quickly end legal recognition of same-sex marriage in Hawaii.

B. Washington Responds: The Defense of Marriage Act of 1996

On September 21, 1996, President Clinton signed the Defense of Marriage Act (Federal Act),[45] adding the next piece to the legal puzzle of same-sex marriage.[46] The Federal Act was clearly in response to Baehr.[47] The Federal Act accomplished two objectives. First, it established that the federal government would not recognize same-sex marriages for purposes of social security or other benefits.[48] Second, and essential to this inquiry, the Federal Act attempted to create a "gay exception" to the Full Faith and Credit Clause of the U.S. Constitution.[49] The Federal Act attempted to confer authority upon the states to deny legal recognition of same-sex marriages sanctioned in other states.[50] The constitutionality of the Federal Act's "gay exception" is very questionable.[51]

C. Florida's Defense of Marriage Act

The 1997 Florida Legislature responded to the same-sex issue by overwhelmingly enacting the Florida Defense of Marriage Act.[52] In response to Governor Chiles' decision to let the bill become law, the bill's senate sponsor, John Grant,[53] stated he thought it was "Great that [the Act] takes effect on June 4, right smack dab in the middle of Gay Pride Week."[54] Chiles went on record more softly, stating, "I believe that, by and large, most Floridians are tolerant and will one day come to view a broader range of domestic partnerships as an acceptable part of life. But, that is not the case today."[55]

The major thrust of the Act, in accordance with the Federal Act, is to prevent same-sex couples from lawfully marrying in Hawaii and subsequently migrating to Florida to claim the rights, privileges, and immunities granted to different-sex couples in Florida.[56] The Act also expressly codified the present Florida ban on legal recognition of same-sex marriages.[57]

The Act was a major part of the new Republican majority's 1997 legislative agenda.[58] Florida House Speaker Daniel Webster[59] went on record in late January, pledging his support for the legislation.[60] Senator Grant began spurring the debate as early as December 1996, stating that "God created Adam and Eve, not Adam and Steve, and it was never intended that there be a lawful contract of marriage between same-sex people."[61]

Several committees considered the bill,[62] including the Senate Judiciary Committee.[63] Senator Grant introduced the bill, stating that "Florida law provides that a marriage relationship is one man and one woman. Generally, organized civilization for about 6000 years has defined that as the definition of marriage."[64] Senator Grant attempted to characterize the issue as economic, and focused on the impacts of the legislation on government and employee benefit packages.[65] However, the financial impact was not ascertainable by either the House or Senate.[66]

Testimony heard by the committee included that of Larry Spalding of the ACLU of Florida, who discussed the background of the issue:

Over the past decade or so, gay men and lesbians in our state and elsewhere are not content to stay in the closet anymore. They want to be recognized as human beings. . . . Some of these folks want the same opportunity to enter into a marriage contract, the same opportunity to succeed or fail at marriage that we have. That means if we allow them to do it, if they can at least come up with about a fifty-one percent success rate they'd be doing better than we were.[67]
Other testimony came from representatives of the Christian Coalition and the American Family Association. In favor of the bill, John Dallas of the Christian Coalition stated that:

granting non-marital relationships the same status as marriage would mean that millions would be disenfranchised from our own government. The state, in essence, would be telling them that their beliefs are no longer valid, and would turn the civil rights laws into battering rams against them. . . . Business owners may be required to provide family health benefits to same sex couples, children could be taught in schools that homosexual sex is the moral equivalent of marital love.[68]
Carol Griffin of the American Family Association commented that "[l]egalizing same-sex marriages would destroy the moral foundation and definition of Florida families. Additionally, homosexuals would immediately be entitled to gay rights: status, adoption privileges and private insurance benefits, as a spouse based solely on the characteristic of how, and with whom they have sex."[69]

The only substantive amendment proposed by Representative Lois Frankel,[70] would have also refused legal recognition of marriages performed in other jurisdictions where the parties to the marriage were "involved in an adulterous relationship with each other prior to the marriage."[71] In a legislative session that echoed morality and personal responsibility, it is quite noteworthy that this amendment overwhelmingly failed.[72] Interestingly, Representative Johnnie Byrd, Jr., the sponsor of the House bill, and every one of the thirty-nine co-sponsors of the bill, voted against the "adultery amendment."[73]

IV. FLORIDA'S DEFENSE OF MARRIAGE ACT AND THE PRIVACY AMENDMENT TO THE FLORIDA CONSTITUTION

In 1980, the Florida electorate amended the Florida Constitution to confer upon its citizens the "right to be let alone and free from governmental intrusion into his private life."[74] This explicit right of privacy extends more protection than the right of privacy recognized under the Due Process Clause of the U.S. Constitution.[75] "[The] amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy."[76] To prevail over privacy rights, the state must show that the "statute furthers a compelling state interest through the least intrusive means."[77]

Soon after the amendment's passage, the Florida Supreme Court formally recognized that marriage and other "family rights" fall within the general right of privacy.[78] Since that time, the court has recognized a piecemeal of privacy interests, including the right to refuse medical treatment,[79] abortion rights,[80] the right of a minor to have sexual intercourse with another minor,[81] and confidentiality rights.[82]

In the closest analogy to same-sex marriage, the Florida Supreme Court recently affirmed a lower court opinion denying recognition of a privacy interest in one's sexual orientation during adoption proceedings.[83] However, this decision does not implicate the fundamental right to marriage recognized pursuant to the Florida Constitution's right to privacy and would not be controlling.[84] Lower Florida courts have recognized the privacy rights of homosexuals.[85]

In Baehr, the Hawaii Supreme Court found that the state ban on same-sex marriages did not violate the affirmative right of privacy granted by the Hawaii Constitution.[86] However, while the Hawaii provision is interpreted in congruence with the right of privacy recognized under the Due Process Clause of the Fourteenth Amendment, the Florida right of privacy is "much broader in scope than that of the Federal Constitution."[87]

While the legality of Florida's ban on same-sex marriage remains an open question for Florida's courts, the Legislature's denial of legal recognition to same-sex marriages does, however, appear to violate article 1, section 23 of the Florida Constitution.

V. FLORIDA'S REFUSAL TO RECOGNIZE SAME- SEX MARRIAGES AND THE UNITED STATES CONSTITUTION

Substantive Due Process

Substantive Due Process stems from the Fifth and the Fourteenth Amendments to the U.S. Constitution. Under substantive due process, if a statute infringes upon a fundamental right, then it is subject to the strictest scrutiny and the state must proffer a compelling governmental interest to justify the statute.[88] The Supreme Court has found that under the U.S. Constitution, there is a fundamental right to marriage.

1. The Fundamental Right to Marriage

Beginning with the historic decisions of Meyer v. Nebraska[8]9 and Pierce v. Society of Sisters,[90] the U.S. Supreme Court began modern privacy jurisprudence.[91] These cases are founded upon the premise that the guarantee of "liberty" in the Due Process Clause of the Fourteenth Amendment "denotes not merely freedom from bodily restraint but also the right . . . to marry, establish a home and bring up children."[92] Thus, even as early as Meyer, the Court recognized marriage as a fundamental right.[93]

In the landmark decision of Griswold v. Connecticut[94] the Court firmly imbedded rights based upon the sanctity of marriage into substantive due process jurisprudence.[95] Two years later, the Court decided Loving v. Virginia.[9]6 In Loving, the Court ruled that Virginia's anti-miscegenation statute[97] violated the Equal Protection Clause[98] and the Due Process Clause of the Fourteenth Amendment.[99] Speaking through Chief Justice Warren, the Court explained that "the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State."[100]

2. Bowers v. Hardwick: Lack of a Fundamental Right

The fundamental right of "marriage" does not necessarily confer a fundamental right of same-sex marriage. In Bowers v. Hardwick,[101] by a five-to-four majority,[102] the Court ruled that there is no fundamental right to homosexual sodomy,[103] and that a majority electoral sentiment that homosexuality is immoral was a rational basis for Georgia's sodomy statute.[104] Although the Georgia sodomy statute at issue was written in terms that prohibited sexual acts between heterosexuals as well as homosexuals, to reach the majority's holding Justice White framed the issue as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."[105]

Framing the issue in Bowers as whether there is a fundamental right to homosexual sodomy, as opposed to a general fundamental right to engage in consensual sexual activity, implicitly created a bifurcation of privacy rights based upon sexual orientation. In Moore v. City of East Cleveland,[106] the Supreme Court held that the recognition of rights inherent in the concept of "liberty" embraced by the Due Process Clause is limited by "tradition," or whether the right sought to be protected is one of the "basic values that underlie our society."[107] Because there is not a "deeply rooted" history and tradition of same-sex marriage in the United States, and pursuant to the bifurcation of the privacy doctrine implicit in Bowers, a court may determine the Act does not implicate a fundamental right. If a court determines that the Act does not violate a fundamental right, then it does not infringe upon substantive due process rights and will be subject to the lowest level of constitutional scrutiny, or the rational relationship test. According to Bowers, and under the lowest level of constitutional scrutiny, electoral sentiment that homosexuality is immoral is a rational basis for the Act, and the Act would pass constitutional muster.[108]

3. Romer v. Evans

The irony of basing legal rules in "history and tradition" is that these are fluid concepts, changing over time. As previously stated, same-sex marriage is becoming a common aspect of contemporary American culture.[109] This suggests that as same-sex marriages become increasingly common, the institution will ultimately find full recognition as a fundamental right.[110]

Moreover, there is substantial debate regarding the validity of Bowers. The bifurcation of privacy rights seems to violate the Court's holding in Loving. Indeed, Loving was based upon the premise that the fundamental right of marriage applies to different-race couples to the same extent that it applies to same-race couples.[11]1 Loving stands for the proposition that the fundamental right of marriage exists for any couple entering into the sacred vows.[112]

Furthermore, in light of the Court's equal protection jurisprudence in Romer v. Evans,[113] animosity toward an unpopular group is not a legitimate state purpose.[11]4 In Romer, the Court was faced with an amendment to the Colorado Constitution that prohibited all state action that entitled any person to have minority status, quota preferences, protected status, or claims of discrimination based on sexual orientation.[115] In striking down the amendment, the Court refused to recognize the primary rationale offered by Colorado-that the legitimate purpose of the discriminatory statute was "respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality."[116] This rationale is quite similar to that offered by the State of Georgia in Bowers. Justice Kennedy's failure to even cite Bowers in the majority opinion in Romer leaves unanswered the "million dollar question" which could itself be the subject of a lengthy inquiry: whether Bowers remains good law, and whether the Court will continue to bifurcate rights between heterosexuals and homosexuals.[117]

Should the Court choose to overrule Bowers, it would seem that the bifurcation of the privacy rights doctrine would also fall. This would establish that homosexuals are entitled to the same fundamental privacy rights as heterosexuals.[118] In the absence of Bowers, because the fundamental right to marriage is clearly established by Griswold and related cases, the only conclusion would be that same-sex marriage would be entitled to fundamental-right status.[119] If a court determines that same-sex marriage is a fundamental right, then the Act would be subject to strict scrutiny and the state would have to show that the Act furthers a compelling interest.[120] Moral sentiment alone is not a compelling reason to justify the violation of fundamental rights; thus, the Act would be constitutional.[121]

B. Equal Protection of the Laws

The Supreme Court has structured equal protection analysis into three distinct categories, applying different levels of scrutiny to each.[122] The Court employs "strict scrutiny," the most stringent level of analysis, in situations where the classification is racial in nature,[123] or involves deprivation of a fundamental right to a distinct class of citizens.[124] At this level of scrutiny, laws must be furthered by a compelling governmental interest.[125] Second, "intermediate scrutiny" applies to gender based classifications and quasi-suspect classes.[126] Laws of this variety are constitutional only if the state interests underlying the statute prove to be "exceedingly persuasive."[127] The lowest level of analysis, "rational relationship" review, applies when the question of law does not affect a fundamental right and when the class of citizens affected is not a suspect or quasi-suspect class.[128] Here, the law need only be rationally related to the governmental interest.[129]

Florida's prohibition on the legal recognition of same-sex marriages may require analysis at all three levels. First, the Act may be invalid because it discriminates on the basis of sex.[130] Second, although homosexuals are not a "suspect class" for equal protection purposes,[131] the Act deprives homosexuals of the fundamental right to marriage, implicating strict scrutiny analysis.[132] Finally, the Act fails to satisfy even rational relationship review.[133]

1. Intermediate Scrutiny and Gender Classifications

The Act may be challenged because it facially discriminates on the basis of sex. Here, the issue of consequence is whether sex is truly implicated by the Act. The heightened level of scrutiny afforded to gender-based classifications under the Equal Protection Clause is justified by a history of discrimination against women.[134] Although the Act's "same-sex" classification is technically based on the sex of the parties to the marriage, the Act does not implicate discrimination against women or men.[135] Nor does it involve an effort to proactively protect women because of their sex. It clearly involves discrimination against homosexuals.[136] The gender classification contained in the Act (i.e., "[m]arriages between persons of the same sex") is incidental to the Act's purpose, namely, non-recognition of homosexual marriages and applies equally to women and men.[137]

Although the Baehr court ruled on the basis of sex pursuant to the more stringent requirements of the Hawaii Constitution, other state courts have rejected claims that the prohibition of same-sex marriage is a gender-based classification pursuant to the Equal Protection Clause of the U.S. Constitution and state constitutional provisions. For example, in Singer v. Hara,[138] the Washington Supreme Court found that Washington's ban on same-sex marriages did not violate the federal Equal Protection Clause or the Equal Rights Amendment to the Washington Constitution.[139] The court did not apply heightened scrutiny to its analysis because it found that the same-sex couple was "not being discriminated against because they are males, they [were] being discriminated against because they happen to be homosexual."[140]

Thus, pursuant to constitutional equal protection jurisprudence, the Act would not invoke intermediate scrutiny as its sex-based classification does not classify or disadvantage on the basis of gender and because homosexuals are not a quasi-suspect class.[141]

2. Strict Scrutiny and the Fundamental Right of Marriage

The Act may be challenged on the basis that it deprives a class of citizens of the fundamental right to marriage. Equal protection analysis provides that the state may not deny a class of citizens rights recognized under the federal Due Process Clause.[142] The issue of consequence to this claim is whether same-sex marriage qualifies for fundamental right status as a matter of federal Substantive Due Process.[143]

If Bowers and its bifurcated view of association rights were overruled, the legality of the Act would likely be resolved via the due process claim. Hence, the Act would deny same-sex couples in Florida of their fundamental right to marriage. However, even in the absence of such a ruling, precedent exists for the proposition that states may not deny same-sex couples the fundamental right of marriage. If the states bestow the right to marry (and all the benefits that come with it) upon different-sex couples, they must do the same for same-sex couples as a matter of equal protection law. Having attached so many rights, privileges, and immunities to marriage, Florida cannot bestow the right to marriage upon different-sex couples and refuse to recognize same-sex marriage.[144]

This proposition is supported by dicta within the Court's equal protection jurisprudence. In Loving v. Virginia, the Court did not address whether the statute's denial of a fundamental right violated the Equal Protection Clause.[145] However, this is of no consequence to the issue at hand because in Zablocki v. Redhail,[146] the Court applied the fundamental rights analysis to marriage.[147] Speaking through Justice Marshall, the Court held that "[a]lthough Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals."[148]

The Court also noted that "[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests."[14]9 The Romer Court found that the alleged state purpose of respect for individual morality was merely a pretext for animus towards an unpopular group, and therefore insufficient to survive even a mere "rational relationship" review.[150] Florida's purposes for the Act, based on "morality" and the protection of different-sex marriages, should fare no better.

3. Rational Relationship Review

Even if a court found that same-sex marriage was not entitled to fundamental-right status, the Act would likely be unconstitutional under rational relationship review.[151] When the class of persons discriminated against by a legal rule is a politically unpopular group, the rational relationship analysis employed is increased toward intermediate scrutiny.[152] The Act is based on animosity towards homosexuality, and as the Court in Romer found, this justification "lacks a rational relationship to legitimate state interests."[153]

Should the Court be unwilling to overrule Bowers, the state could prevail by contending that the Act is narrowly tailored to serve the public interest.[15]4 The Romer Court held the Colorado amendment unconstitutional because it disenfranchised homosexuals. In Romer, the Court stated:

First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an . . . invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.[155]
The Act only denies homosexuals the right to legal recognition of marriage; it is not a broad disability of the sort described in Romer.[15]6 If Bowers is upheld, the Court could distinguish Romer on this basis and uphold the Act.

VI. FLORIDA'S CONSTITUTIONAL DUTY TO RECOGNIZE SAME- SEX MARRIAGES LEGALLY SANCTIONED IN OTHER STATES

The Act seeks to withhold legal recognition to non-Florida marriages between members of the same sex.[157] Florida's obligation to recognize same-sex marriages legally sanctioned in other states has its basis in several strands of constitutional jurisprudence, including the Privileges and Immunities Clause[158] and the Full Faith and Credit Clause.[159]

A. The Right to Interstate Travel

The right to travel is perplexing because it finds authority in no specific constitutional provision.[160] The right has been attributed to the Privileges and Immunities Clause of article IV,[161] the Privileges and Immunities Clause of the Fourteenth Amendment,[162] and the Commerce Clause of article I.[163]

Regardless of the basis of the right, interstate travel is a national concern that states may not infringe on through diverse treatment.[164] The Supreme Court has noted that "[a] state law implicates the right to travel when it actually deters such travel . . . or when it uses 'any classification which serves to penalize the exercise of that right.'"[165] The Act implicates this right because same-sex couples legally married in other states would be deterred from traveling to Florida.[166] For example, if one of the parties to the marriage faces a medical emergency, Florida would not recognize the other's legal rights to make medical decisions for his or her spouse.[167]

The right to interstate travel also includes interstate migration.[16]8 In Shapiro v. Thompson,[169] several states attempted to deny welfare benefits to those residing within the state for less than one year.[170] The Court held that the state may not interfere with the constitutional right to interstate travel by denying legal rights to those who have recently moved.[171]

The Act denies legally married same-sex couples all of the legal rights, privileges, and immunities normally granted to a valid marriage.[172] The Supreme Court has noted that "[i]f a law has 'no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional.'"[173] Thus, section 741.212, Florida Statutes, is similarly unconstitutional.

B. Defense of Marriage and the Full Faith and Credit Clause

The Full Faith and Credit Clause of the U.S. Constitution is an essential part of our federal system of government.[174] The Clause states: "Full Faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other State."[175] The drafters sought to transform several independent sovereign entities into one cohesive nation.[176]

At issue is whether Congress possessed the authority to pass the Federal Act. The second sentence of article IV, section 1 of the U.S. Constitution states that "the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."[177] Congress cites this provision, known as the "Effects Clause," as legislative authority for the Federal Act.[178]

However, the Full Faith and Credit Clause is firmly inscribed in the U.S. Constitution. Congress may not promulgate legislation that effectively dismisses this constitutional mandate. As professor Laurence Tribe has noted, the Effects Clause "includes no power to decree that, if those official acts offend a congressional majority, they need to be given no effect whatsoever by any State that happens to share Congress's substantive views."[179] The intent of the framers of the Constitution was to unify the nation; it was clearly not to continue a relation of several, separate sovereign states with various contradicting laws possessing no effect beyond each state's border.[180]

Considering the foregoing, the same-sex marriage prohibition created by the Federal Act is beyond the scope of congressional legislative power because the Full Faith and Credit Clause mandates that all states give full faith and credit to the "public acts, records, and judicial proceedings of every other state."[181] Once one state has sanctioned legal same-sex marriage, all other states should be constitutionally required to uphold the validity of the marriage.

However, the Supreme Court has never addressed whether marriage falls within the scope of the Full Faith and Credit Clause. The Full Faith and Credit decision of the Supreme Court most analogous to marriage is that of a divorce decree. In what was a highly controversial move at the time, the Court, in Williams v. North Carolina,[182] overruled a forty year-old precedent[183] and held that North Carolina must grant full faith and credit to a Nevada divorce.[184] The Court recognized that each state has an interest in the marital status of those domiciled within the state.[185] The Court found that the state could alter the "marriage status of the spouse domiciled there, even though the other spouse was absent."[186] Although dicta, the use of the more general term "marriage status" suggests that both the dissolution of the marital relation and the legal action that brought the relation into being would be entitled to full faith and credit.[187]

Part of the Court's reasoning looked to the effects of the opposite outcome.[188] Thus, if one party to the marriage receives a lawful divorce in state A, remarries in state A, and then eventually relocates to state B (which does not recognize the state A divorce), that party would be subject to bigamy prosecutions in state B and every other state that does not recognize the divorce, and not subject to bigamy prosecutions in state A or any other state that does recognize the state A divorce.[189] With same-sex marriage, a similar scenario could exist if Florida refuses recognition of a marriage recognized by Hawaii or another state. Should one or both of the parties to the Hawaii marriage relocate to Florida they would be unable to secure a divorce since, pursuant to the Act, they are not legally married within the state of Florida.[190] Should either party enter a valid heterosexual marriage, he or she would be subject to bigamy prosecutions in Hawaii and any state that recognizes the Hawaii marriage, and not subject to prosecution in Florida or any state which does not recognize the first marriage.[191] In both cases, children of the marriage would be considered illegitimate in some states and legitimate in others.[192]

This differentiation among the states is exactly what the Full Faith and Credit Clause was intended to prohibit.[193] In the words of Justice William O. Douglas, SIt is a Constitution we are expounding -a Constitution which in no small measure brings separate sovereign states into an integrated whole through the medium of the full faith and credit clause."[194] A valid marriage, and hence a valid same-sex marriage, should be given full faith and credit in every state in the country.

VII. CONCLUSION

All the arguments against same-sex marriage boil down to two core premises: homosexuality is immoral; and marriage, in this country, has always been defined as a heterosexual union. History shows us many similar arguments that have been made to justify the deprivation of rights to unpopular groups. For instance, many argued that interracial marriage had always been prohibited,[195] African-Americans had always been slaves,[196] and abortion had always been illegal.[197] The argument that same-sex marriage should not be legally recognized because it is not recognized in the United States is as logically and historically ill-founded as any of those arguments. In each of these issues, as with same-sex marriage, there comes a time when change is due; that time is now for legal recognition of same-sex marriage.

The argument that same-sex marriage should not be legally recognized because some feel that homosexuality is immoral does not fare better. Laws based on the values of the majority "raise the inevitable inference that [they are] . . . born of animosity toward the class of persons affected."[198] In a free, pluralistic society the rights, benefits, and immunities of marriage should not be denied to a class of citizens because some believe homosexuality is "wrong." The best advice for one who believes it is wrong to marry a person of the same sex is to refrain from doing so.