Florida Amendment Wording Okayed

Anti-gay marriage measure can go to voters, but not until 2008

The Florida Supreme Court has advised Attorney General Charles J. Crist Jr. that none of the objections raised against the proposed Florida Marriage Protection Amendment has any merit.

In a unanimously endorsed opinion by Justice R. Fred Lewis, the court said on March 23 that there is no legal obstacle to placing the amendment on the ballot. However, because Florida4Marriage.com, the organization that wrote the amendment, failed to secure enough signatures by deadline, the measure will not be on the 2006 general election ballot, and the soonest it might be put before the voters would be November 2008.

The proposed amendment states: “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 ballot title for the measure is “Florida Marriage Protection Amendment,” and the proposed ballot summary essentially repeats the text of the proposed amendment.

The American Civil Liberties Union led the charge to attempt to block the amendment. The primary objection was that the amendment violates a Florida constitutional requirement that proposed amendments not deal with multiple subjects. This, as the court pointed out, is to prevent the “logrolling” effect, which arises from coupling two distinct questions and having one adopted on the back of the other without giving voters an opportunity to reject one while approving the other.

The ACLU argued that voters were being asked to decide two questions—whether to ban same-sex marriages, and whether to also bar alternatives such as civil unions or domestic partnerships. Public opinion polls show that there is some significant proportion of the electorate that opposes same-sex marriage but would be willing to tolerate the idea of civil unions or domestic partnerships.

The court was unwilling to accept this reasoning, finding that the proposed amendment, broadly conceived, addresses only one question. Justice Lewis concluded that “the proposed amendment does not impermissibly force voters to approve a portion of the proposal which they oppose to obtain a change which they support. Rather, the voter is merely being asked to vote on the singular subject of whether the concept of marriage and the rights and obligations traditionally embodied therein should be limited to the union of one man and one woman. The plain language of the proposed amendment is clear that the legal union of a same-sex couple that is not the ‘substantial equivalent’ of marriage is not within the ambit of this constitutional provision.”

This leaves a large amount of ambiguity.

Would the Florida Supreme Court accept the distinction that the California Court of Appeals recently embraced between marriage and domestic partnerships, ruling that despite the success of Proposition 22 in 2000 which placed a statutory ban on same-sex marriage in the California Family Code, the Legislature could nonetheless adopt a domestic partnership law that provides same-sex couples with almost all the same rights as married couples? In California, the court relied on the limited language of Prop 22, which did not talk about anything except marriage.

Would the Florida Court consider civil unions to be the “substantial equivalent” of marriage? Nobody would know until a civil union act is passed and challenged. Given the current political disposition of the Florida Legislature, such a test is unlikely any time soon.

The court also rejected an argument that including the word “protection” in the title of the proposal was argumentative and misleading. In the past, Florida courts have rejected ballot titles and summaries that introduced emotional arguments and editorializing rather than simply stating and describing the proposal. The ACLU argued that the words “protect” or “protection” in this context are misleading, since, as the group argued, the proposed amendment was aimed entirely at excluding couples from being married, and not at actually protecting or defending the institution of marriage.

But that’s not how the court saw it.

“The common definition of the term ‘protect’ is ‘to maintain the status or integrity of,’ wrote Lewis, quoting the 19th edition of Merriam Webster’s Collegiate Dictionary. “This common definition, when read in context and conjunction with the rest of the language contained in the ballot title and summary, accurately portrays the chief purpose of the amendment—preserving the current concept of marriage in Florida as the legal union of one man and one woman.”