Florida Supreme Court Should Follow Iowa's Lead on Gay Marriage

An edited version of my Editorial appeared on May 3, 2009 in the Ft. Lauderdale Sun Sentinel (see http://www.sun-sentinel.com/news/opinion/sfl-iowa-marriage-wolfe-m0503sbmay03,0,310715.story).  The full text is below:

Florida Supreme Court Should Follow Iowa's Lead on Gay Marriage

 

Equal Protection Record Lights the Way for Florida's High Court

 

By Curtis Wolfe *

Far to the north of Florida, in a rural Midwestern state known for long, cold winters and with barely a fifth as many residents as the teeming "Sunshine State," on April 3^rd the Iowa Supreme Court unanimously struck down the state legislature's effort to ban gay marriage as unconstitutional, upholding the most important constitutional principle underlying the American way of life—Equal Protection.

Nearly 1,500 miles from the Iowa State capitol, our Florida Supreme Court justices should take note of the challenge presented by the Iowa Supreme Court as they consider whether to set aside or let stand our state's "Constitutional Amendment" banning gay marriage. If the Florida high court chooses the latter course, it will render toothless our constitutional guarantee of equality and will continue the discouraging history of discrimination that haunts, or should haunt, each Florida resident. 

Why should the Florida Supreme Court and more than 18 million Floridians living in the fourth most populous state in the nation attach any particular consequence to what happens in a far-off, sparsely populated Midwestern state?

History provides the best answer to that question, with Iowa at the forefront of anti-discrimination rulings since the fight for equal protection began in our country. 

In 1839, the Iowa Supreme Court ruled that a human being could not be treated as property to enforce a contract for slavery – 17 years before a U.S. Supreme Court stuck in an uncivilized past infamously elected to uphold the rights of a slave owner in Dred Scott v. Sanford. In 1868 and 1873, the Iowa court denounced segregation in a stand that the U.S. Supreme Court would not take until 1954 with Brown v. Board of Education. 

And, in  1869, Iowa's Supreme Court led the way in promoting equality by allowing women to practice law in the state -- the U.S. Supreme Court would affirm Illinois' denial of a woman's right to practice law three years later and as late as 1894 go on to quash a Virginia woman's right to practice law.

In contrast, Florida's disappointing record on slavery and desegregation are well known and the State only granted women the right to practice law in 1898, nearly a generation after Iowa recognized this right.

In each of its historic decisions, Iowa's highest court ignored public outcry and stood firm in upholding the Iowa state "constitution's ideal and reaffirm the 'absolute equality of all' persons before the law as the very foundation principle of our government."

Similarly, the court has braved a conservative backlash in its current decision to overturn the ban on gay marriage, in its 69-page opinion judiciously and thoughtfully addressing each of the government's rationales supporting the popular opposition to gay marriage and dismissing each one of them.

Like Iowa's Constitution, our Florida Constitution guarantees that all Floridians are "equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty and to pursue happiness." And, like the Iowa law banning gay marriage, the Florida constitutional amendment defines a "marriage" as a union between one man and one woman.

The Iowa Supreme Court found in its ruling that "the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation."

The Iowa court's analysis and explanation are thorough, thoughtful and learned. When coupled with the court's distinguished history of being early and right on issues of equal protection, the decision should help the Florida Supreme Court to recognize the prejudice and stereotype embedded in efforts to preserve "traditional" marriage through persecution of same-sex couples and to acknowledge that under the law those relationships have the same level of legitimacy, corresponding benefits and detriments as do opposite-sex relationships.

In Iowa, the Supreme Court justices wrote that "we give respect to the views of all on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles." In Florida, our Supreme Court should similarly seek to uphold this same, profoundly American principal of equal protection that is enshrined in our state Constitution.

 

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* Curtis Wolfe is an Iowa-born, Florida-resident attorney licensed to practice law by the Florida Bar. He is also founder and CEO of Boca Raton-based whocanisue.com.