News release from Florida Red & Blue’s SayNo2 campaign:
Legal Community Agrees Amendment 2 Could Threaten Existing Rights in Florida
As the old joke goes: “How do you get three answers to one question? Ask a lawyer.”
So it’s amazing when 154 lawyers agree on anything. Yet that’s just the case when it comes to opposition against Amendment 2, the so-called Florida Marriage Protection Amendment.
Today, Florida Red & Blue released a letter signed by 154 Florida lawyers that warns voters about Amendment 2,
Signers include former Florida House Speakers Peter Wallace and Richard Pettigrew and former President of the American Bar Association, Dean of Florida State University College of Law and President of Florida State University, Talbot ("Sandy") D'Alemberte.
Florida Legislature's Office of Economic and Demographic Research (EDR), charged with reviewing the economic impact of potential amendments on Floridians, stated three ways existing rights and benefits could be put at risk:
- "If domestic partnership registries are deemed substantially equivalent to marriage, their termination could place registrants at risk of losing specified rights and benefits, such as those related to health insurance."
- "Some local governments that currently extend health insurance and other benefits to domestic partners may be impacted."
- "By invalidating any union or ‘substantial equivalent thereof,' this amendment could be raised as a defense in domestic violence cases, resulting in fewer domestic violence convictions."
Currently three Florida Statutes [741.212 (1), 741.212 (2), 741.212 (3)] prohibit marriages between persons of the same sex while the state's Defense of Marriage Law (codified as s. 741.212) also makes same-sex marriage illegal in the state.
We, the undersigned Florida attorneys, sign this letter to publicly share our concerns about the vague language and potentially damaging consequences of the proposed Constitutional Amendment 2 and urge our fellow Floridians to join us in opposing its inclusion in the Florida Constitution. Amendment 2 is called the “Florida Marriage Protection Amendment” and is often referred to by the media as a “gay marriage ban.” The proposed amendment is:
"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."
Florida Law Already Prohibits Same-Sex Marriage
References to ‘marriage protection’ or ‘gay marriage bans’ are misleading as four existing Florida statues [FS 741.212 (1), 741.212 (2), 741.212 (3) and 741.04] already define marriage as the union of a man and a woman or otherwise prohibit the creation or recognition of ‘same-sex marriages.’ The legality or recognition of ‘same-sex’ unions in Florida will be no more or less illegal in Florida regardless of the outcome of the proposed amendment.
Ambiguity in Amendment Language Will Likely Result in Unanticipated and Serious Economic and Legal Repercussions
Our chief concern is the section of the proposed amendment which states: “…no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”
We agree with the 2006 report of the Florida Legislative Office of Economic and Demographic Research (EDR) which concluded: “The amendment provides no definition for the phrase ‘substantial equivalent thereof,' which lends to the ambiguity of the wording of the proposed amendment.”
Adding such vague, untested and undefined language is likely to deliver unanticipated repercussions and could substantially alter our state both economically and legally. Quoting the EDR report on Amendment 2 again, it warns, "Depending on actions taken by the Legislature, the courts, and Florida businesses, financial obligations between individuals are expected to change in complex ways…”
Potential Loss of Existing Legal Protections and Benefits for All Floridians.
- Alimony: In 2005, the State Legislature adopted new law designed to prevent a loophole where a former spouse receiving permanent alimony opts to cohabitate with a new partner rather than remarrying and continues to receive permanent alimony. Under this relatively new divorce law, a former spouse’s alimony obligation may terminate if the recipient spouse enters into a “supportive relationship” with another person. Florida case law defines a supportive relationship as one that provides “support equivalent to marriage”. Clearly, “support equivalent to marriage” is dangerously similar to “substantial equivalent to marriage”. The portion of Florida Statute 61.14 recognizing a relationship providing “support equivalent to marriage” could be held unconstitutional under Amendment 2. As a result, every former spouse who is either Court Ordered or who signed an agreement to pay permanent alimony could be required to continue paying alimony despite the fact that the receiving spouse has found a new partner. At the very least, these individuals will face a costly Court battle trying to uphold their agreements and to terminate their alimony obligations.
- Domestic Violence Protection: Other potential impacts include using Amendment 2 as a defense to domestic violence on an unmarried partner (a similar amendment was used as a domestic violence defense in Ohio). Quoting the EDR again, "By invalidating any union or ‘substantial equivalent thereof,' this amendment could be raised as a defense in domestic violence cases, resulting in fewer domestic violence convictions."
- Private Property Arrangements and Estate Planning: Without examining every potential consequence in great detail, it is possible that Amendment 2 could also have profound implications on the ability of citizens to share property or pass on assets, establish trusts or other legal arrangements or even remarry. Especially likely to be impacted by this outcome are Florida’s senior citizens and retirees who remain unmarried by choice and share pension benefits or other government benefits they have earned.
- Domestic Partnership Registries: This vague and broad language could also risk termination of the several established domestic partnership registries which are currently accessible to millions of Floridians. These registries allow unmarried Floridians to share benefits or other protections such as hospital visitation, burial rights and health care benefits. The non-partisan and independent EDR report again sites this concern in finding: “If domestic partnership registries are deemed substantially equivalent to marriage, their termination could place registrants at risk of losing specified rights and benefits, such as those related to health insurance."
While no one can know the full impact of the proposed amendment, litigation will result as vested interests challenge shared health plans, defend domestic abusers or governments seek clarity to the undefined language in the proposal. Even if every warning and potential outcome proves unfounded, the years of uncertainty and sheer legal expenses would be costly and unnecessary. As attorneys, our legal education and experience make us hesitant to support the vague and untested language in Amendment 2. Adding such a provision to our Constitution is unwise, especially when adopting the amendment will not alter our state’s current laws banning ‘same-sex marriage.’
As Floridians, we are concerned by the range of impacts Amendment 2 could have on us and our neighbors. It’s simply not worth risk that Amendment 2 could take away existing legal protections and benefits from even a single Floridian.
Accordingly, we strongly oppose the adoption of Amendment 2 and ask our legal colleagues and all Florida voters to join us in speaking out and voting against this dangerous provision. With regards and thanks for your attention.
W. Cleveland Acree, II
Mary Merrell Bailey
David Jay Bernstein
Peggy Smith Bush
O. Kim Byrd
David da Silva Cornell
Jacqueline Kelley Davis
Karen M. Doering
D. Michael Elkins
David Finkelstein, Attorney and CPA
Fredrick "Rick" Freedman
Benedict P. Kuehne
John Lord, Jr.
Lorene L. Clemans Powell
Warren S. Schwartz