Another Marriage Equality Ruling from Florida – Albeit a Narrow One

Palm Beach County Circuit Judge Diana Lewis ruled on August 5 that the Florida ban on recognizing same-sex marriages was unconstitutional as applied to the case pending before her, in which a Pennsylvania man is seeking to be appointed the Personal Representative in Florida for his deceased husband’s estate.  Lewis found that there was no rational basis to deny the appointment.

Frank Bangor and Jason Simpson were married in Delaware in 2013.  Bangor passed away on March 15, 2014.  The men resided in Pennsylvania, which did not recognize their marriage at the time of Bangor’s death.  A few months later, however, a federal judge declared the Pennsylvania same-sex marriage ban unconstitutional and the state decided not to appeal, so, theoretically, Pennsylvania would recognize Simpson as Bangor’s surviving spouse.  Bangor left a will, designating Simpson his executor and sole beneficiary.  At his death, Bangor owned some property in Florida, and in the will he appointed Simpson as his Personal Representative to deal with the Florida property.

Such an appointment requires confirmation by the Florida probate court in the county where the property is located.  Under Florida law, personal representatives of out-of-state property owners must be Florida residents unless they are a surviving spouse or close relative of the deceased.  Thus, Simpson’s status as a surviving spouse of Bangor is a prerequisite for his appointment as Personal Representative.

This should be a routine appointment.  The problem is that Florida has a constitutional amendment and statutes that absolutely forbid the recognition of same-sex marriages for any purpose of state law.  Judge Lewis concluded that she could not confirm the appointment of Mr. Simpson without first considering the validity of the Florida law.  Simpson was not mounting a facial attack on the constitutionality of the Florida law in this case.  Rather, he was arguing that it was unconstitutional as applied to his situation.

Treating this as an “as-applied” challenge, Judge Lewis found that there was no rational basis for refusing him the appointment.  She could find no policy justification for refusing to recognize this marriage.  Taking note of the thirteen recent federal court rulings striking down state bans on recognizing out-of-state same-sex marriages, and the recent rulings by Florida trial court judges holding the Florida marriage ban unconstitutional, Judge Lewis found the weight of authority supporting Simpson’s application.  Of course, U.S. v. Windsor factored into her decision as well, since Windsor was a marriage recognition case, and the Supreme Court found that Congress’s refusal to let the federal government recognize lawfully-contracted same-sex marriages violated the 5th Amendment’s Due Process and Equal Protection requirements.

She concluded that Simpson was entitled to serve as Personal Representative of his deceased husband.  She noted that due to the decision in Whitewood v. Wolf by the federal court in Pennsylvania, Simpson’s domicile state recognizes his marriage.  She had notified the Attorney General’s office that she would be considering the constitutionality of the Florida marriage ban, but that office did not submit a brief or make any arguments, and she found that the state had not offered, “and this Court cannot find, any compelling state interest in denying the Decedent’s choice for his Personal Representative to serve in the state of Florida.”  She characterized such appointments as “routine” without any inquiry into the nature of the marriage, and found that none of the policy arguments presented in other marriage recognition cases had any application to this case.  She found no justification to deny Simpson the appointment, and appended to her decision signed copies of the necessary forms, making the appointment immediate with no mention of any stay.

Since the action was uncontested, there is no potential appellant, and Judge Lewis apparently so no reason to delay the administration of the estate by staying her opinion pending the outcome of appeals in other marriage equality cases.  The state is presently appealing two rulings from Monroe and Miami-Dade counties holding the marriage ban unconstitutional.  A third such ruling, from Broward County, was in private litigation to which the state is not a party, but the judge stayed his decision pending the appeals in the other cases.  Other marriage equality challenges are also pending in Florida state and federal courts.

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