Broward County Circuit Judge Dale Cohen has ruled that Florida must recognize a Vermont civil union for purposes of dissolving it so that one of the partners, a long-time Florida resident, can marry her girlfriend out of state. The August 4 ruling in Brassner v. Lade, Case No. 13-012058(37), is the 30th consecutive ruling for marriage equality since a federal judge in Utah ruled last December that Utah’s ban on same-sex marriage violated the 14th Amendment. Judge Cohen’s decision was also the third in Florida within a matter of weeks, following recent decisions in Miami-Dade County and Monroe County. The earlier decisions, however, solely ruled on whether a same-sex couple was entitled to marry in Florida. Judge Cohen was the first to rule that an out-of-state civil union must be recognized by Florida such that the state court can dissolve it. The state is not a party to the case. Judge Cohen stayed his decision “pending the outcome of expected appeals on similar issues recently ruled on by courts in Monroe and Miami-Dade Counties,” for reasons that become obvious when one considers the facts of the case.
In 2008, Florida citizens voted to amend their constitution to include the following provision: “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.” Judge Cohen, evidently considering a Vermont civil union to be a “substantial equivalent” of a marriage, referred interchangeably through his opinion to marriages and civil unions, the main issue confronting him being whether this constitutional provision prevented him from issuing an order that would dissolve the petitioner’s civil union with the respondent.
The petitioner, Heather Brassner, who has lived in Florida for fourteen years, formed a civil union in Vermont with the respondent, Megan E. Lade, in 2002. The partners split up thereafter, and Brassner has lost touch with Lade. She now has a new same-sex partner, whom she would like to marry, but she needs to get the civil union dissolved first, and would have to go out of state to get married because of the Florida amendment, as the prior two court rulings have been stayed pending appeal.
Brassner filed a petition seeking an order from the Broward Circuit Court dissolving her civil union. Judge Cohen concluded that he could not dissolve a relationship that was not recognized under state law, so he requested briefing on the question whether the Florida marriage amendment is constitutional. At this point, the weight of accumulated precedents supplies a simple answer. As Judge Cohen concludes, looking to arguments made in other cases to determine what the state would argue if it were a party in this case, there is no rational basis for the state of Florida to deny recognition to Brassner’s civil union, where doing so would prevent her from getting married to her partner.
Judge Cohen resolved the Due Process analysis by reference to the many cases that have held that marriage equality claims invoke a fundamental right, and that there is no way that the arguments typically made by states in defense of their marriage bans can meeting the compelling interest test. On the Equal Protection analysis, he found himself bound by existing state precedent to treat this as a rational basis case, and concluded, as have many courts over the past eight months, that marriage bans also flunk the rational basis test.
“By failing to recognize Petitioner’s out-of-state union her constitutional right to due process and equal protection under the law is violated,” wrote Judge Cohen. “Florida’s refusal to recognize Petitioner’s union is tantamount to banning her from marrying someone of the same sex. Accordingly, Florida’s ban on same-sex marriage and refusal to recognize out-of-state same-sex marriages violates Petitioner’s fundamental right to marry under the due process clause and discriminates based on sexual orientation, which violates the equal protection clause.”
Cohen stressed that his ruling was “the result of legal analysis of the laws of the federal government and the State of Florida,” not an expression of politics or “emotionality.” He insisted that “equality is the cornerstone of our nation. In pursuit of that ideal comes the often-uncomfortable feeling of change. We have learned that over time change becomes a part of what this great nation is about.”
“The tides are turning on the issue of same-sex marriage throughout this country,” he wrote. “Since the 2013 ruling of the Supreme Court in Windsor, there have been numerous decisions of courts throughout this country and none have found that same-sex marriage bans pass constitutional muster.”
Judge Cohen granted the Petitioner’s motion for a declaratory judgment, declared that the state’s failure to recognize legal out of state civil unions violates the 14th Amendment, and also that the Marriage Amendment and a parallel state statute also violate the 14th Amendment.
Brassner hired a private investigator to try to find Lade, but the search was fruitless. Thus, there is nobody at present to appeal Judge Cohen’s ruling, since the state is not a party and Lade is nowhere to be found. Brassner’s petition to the court is essentially unopposed. This is why Cohen’s stay is premised on the outcome of appeals in the other marriage equality cases.