Marriage Equality in Florida and the Nation
The U.S. Supreme Court
On October 6th, 2014, the U.S. Supreme Court denied the petitions for writs of certiorari in seven cases arising from challenges to decisions of the Fourth, Seventh, and 10th circuits that recognized a constitutional right to same-sex marriage. Thereafter, the Ninth Circuit also held such bans unconstitutional. There are pending appeals in two or more federal circuits: The 11th and Fifth, although the 11th Circuit will not rule on its appeals. As previously stated, the Sixth Circuit case upholding state-sponsored discrimination is pending before the Supreme Court, and a ruling is expected in June.
Because the Supreme Court has refused to stay any of the pro-marriage equality federal circuit appellate decisions and the federal trial court decisions that brought marriage equality to Florida and Alabama, the general impression is that the court does not have the votes to stop marriage equality. Further, as practical matter, a ruling upholding the Sixth Circuit’s holding favoring state DOMA laws would effectively “unmarry” thousands of couples and leave their lives (and perhaps the lives of many with whom they have been dealing) seriously disrupted. Others have noted that the numerical “tipping point” of the current 37 states allowing same-sex marriage is comparable to historical precedent when other important new Supreme Court marriage precedent has been decided, such as the overturning of anti-miscegenation laws.
On The Horizon
In the event that same-sex marriage becomes a reality in Florida, many question the new relationship that would arise. Two of those questions include parentage concerns and cohabitation agreements.
The first question is, to what extent, if any, will a spouse be considered the parent of a born child to or by the other spouse during the marriage? Biological parents automatically have a duty to support their children. However, parental rights under Florida law are not based solely on biology. To the contrary, in a marital scenario, parental rights/duties instead are based on a combination of two concepts: One concept is effectively similar to parens patriae – the state will protect the safety and best interests of all children.
The second applicable concept is that of marriage as a contract: What is mine is yours, and yours mine. Including children. The man is presumed the legal father of any children born during an opposite-sex marriage, even if he is not the biological father. He does not have to legally adopt the child to have parental rights to and be legally responsible for the child. For a lesbian marriage, if one spouse bears a child during the marriage, would the same presumption apply, such that the other spouse has a presumption of maternity?
At present in a marriage with two fathers, neither can give birth to a child, as can occur in a lesbian marriage. However, if one man biologically fathers a child via surrogate during a marriage with another man, would his husband be presumed to be the second legal father?
The second area of issues involved cohabitation agreements that the parties executed to control results in the event of a nonmarital breakup. The question arises of how the affect the parties’ legal rights should they subsequently marry. There is no way to predict their effect. An analogy may be the cy pres doctrine where the intent of the decedent in making a charitable gift if effectuated even if the named donee does not exist. If a court were to focus on that sort of “functional equivalency” intent analysis, then such cohabitation agreements might remain enforceable because the couple perhaps wanted to enter into marriage, but was only precluded from having done so by the illegal and unconstitutional acts of the stat in actively preventing the couple from marrying.
The flip side here is that each and every one of those same-sex couples could also have executed a new prenuptial agreement before the exercised their newfound right to marry. But if they do not do so, then there could be an argument that they abandoned their pre-existing contract, in a very similar way to that whereby couples in traditional marriages may (or could, prior to Florida’s adoption of the Uniform Premarital Agreement Act) abandon or repudiate their own premarital agreements via subsequent events.
The examples are virtually limitless. What about a person legally married in one state who moved to a state like Florida, sought a divorce from her wife, only to be told by the Florida divorce court that she was single? During the pendency of her appeal, she needs to buy real property. Does the deed say the purchaser is “single” or “married”? We will just have to see.
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