The Third District Court of Appeal has still not rendered its decision in the Oliver v. Stufflebeam case, which asks whether Florida's ban on the recognition of same-sex marriage (Section 741.212(1)) also forbids a court from dissolving a same-sex marriage entered into in another state. But it's not too early to start thinking about what such a decision might mean for a later court's equal protection animus analysis. And considering that Federal District Court Judge Hinkle's ruling striking down Florida's same-sex marriage ban will be heading to the Eleventh Circuit soon, the time is particularly ripe.
Questions about animus have become part and parcel of the Supreme Court's recent equal protection rulings on hot topic issues like sodomy and same-sex marriage. In Romer v. Evans, for instance, Justice Kennedy wrote that Colorado's Amendment 2--which prohibited Colorado localities from providing special protections to any person based on sexual orientation--violated equal protection because "[i]ts 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."
So then, what does it say about Florida's animus towards gays and lesbians if it prohibits not only their marriage, but also their divorce? I haven't looked much into Florida's particularized reasons for not permitting same-sex marriage. I assume it's for the usual reasons: Protecting traditional marriage, protecting children from the devastating effect of having two daddies, etc. How does a ban on same-sex divorce fit into this mission?
I think it's pretty obvious that it doesn't. In fact, it's actually contrary to Florida's objectives: If Florida doesn't want to permit same-sex marriage, it would make more sense to prohibit marriages but allow such divorces. By pretending that out-of-state marriages simply don't exist, Florida sends the message that it doesn't want to touch those marriages with a ten-foot pole; not even to dissolve them. After all, it would be an easy enough thing for Florida to craft a law that would still permit a court to rule out-of-state marriage void ab initio in Florida, or even to flat out permit their dissolution. Alternatively, a Florida court could very easily read Section 741.212(1) to permit same-sex divorce (through the void ab initio option) since it's not at all clear that ruling a marriage void ab initio would require ever recognizing the marriage.
If Florida courts won't adopt this reasonable reading of Florida's ban, it suggests that Florida doesn't want to get its hands dirty with anything having to do with same-sex marriage. There's an open question about whether a court's potentially incorrect reading of a statute can be used to attribute animus to the legislature/people of Florida.
As I mentioned above, we don't know yet whether Florida's same-sex prohibition extends also to same-sex divorce. But be assured that if it does, LGBTQ advocates will seize on that fact both in the Eleventh Circuit and in the Supreme Court, if they get that chance.
(I think this particular animus point is much more potent in the Eleventh Circuit. It pertains only to animus in Florida, and therefore would be nearly useless to the Supreme Court--if the Court takes a gay marriage case this Term, it will take a case with national implications, and not another case like Hollingsworth, which was limited to California.)
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