Florida Definition of Marriage, Amendment 2 (2008)

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The Florida Definition of Marriage Amendment, also known as Amendment 2 and The Marriage Protection Amendment, was an initiated constitutional amendment on the November 4, 2008 election ballot in Florida, where it was approved.

• The amendment added a new section to Article 1 of the Florida Constitution to define marriage as a union of one man and one woman.

• Amendment 2 was the 29th citizen-initiated measure to appear on a Florida statewide ballot.

Aftermath

Sixteenth Circuit Court

On July 17, 2014, Judge Luis Garcia of Florida's Sixteenth Circuit Court overturned Amendment 2 ruling that it effectively made same-sex couples second-class citizens. The ruling only applies to Monroe County, but Garcia said that marriage licenses could start being issued there on July 22, 2014. However, due to an appeal filed just shortly after the ruling, a stay has been placed upon Garcia's ruling. This means that licenses will not be available to same-sex couples unless a higher court upholds his ruling.

Eleventh Circuit Court

On July 25, 2014, Judge Sarah I. Zabel of the Florida Eleventh Circuit Court ruled similarly to overturn the ban in Miami-Dade County. Zabel immediately stayed the ruling until appeals are heard, and Attorney General of Florida Pam Bondi (R) filed an appeal on the same day.

Seventeenth Circuit Court

On August 5, 2014, a third judge, Judge Dale Cohen of the Broward County Circuit Court, ruled the ban was unconstitutional, as well. Similar to the prior two rulings, this ruling only applies to Broward County, and Cohen placed an immediate stay on his ruling.

Fifteenth Circuit Court

Also on August 5, 2014, a fourth judge, Judge Diana Lewis of the Palm Beach County Circuit Court, ruled against the ban in a probate case. This ruling applies only to this specific case which allowed a widower to be the personal representative of the deceased's estate.

U.S. District Court

On August 21, 2014, Judge Robert Hinkle of the U.S. District Court of Northern Florida ruled the marriage ban unconstitutional, making him the first federal judge to rule on the issue in Florida. The judge claimed that the ban violated the Fourteenth Amendment's guarantees of equal protection and due process and also compared it to laws against interracial marriages. Judge Hinkle stayed his decision, meaning no same-sex marriage licenses could be given, and out of state same-sex marriages were not yet recognized. Attorney General of Florida Pam Bondi (R), who appealed the decisions by the previous four judges, challenged this order.

Judge Hinkle's stay on his decision was designed to expire 91 days after the United States Supreme Court denied cert in other same-sex marriage cases, which occurred on October 6, 2014. Therefore, Hinkle's stay was set to expire on January 5, 2015. Both the United States Court of Appeals for the Eleventh Circuit and Supreme Court refused to grant an additional stay on the decision.

On January 1, 2015, Hinkle ruled that county clerks across the state must start issuing marriage licenses to same-sex couples by January 6, 2015.

U.S. Supreme Court

See also: Obergefell v. Hodges

On June 26, 2015, the United States Supreme Court ruled that same-sex couples have a constitutional right to marriage under the Fourteenth Amendment of the United States Constitution in the case Obergefell v. Hodges. This ruling overturned all voter-approved constitutional bans on same-sex marriage.

Justice Anthony Kennedy authored the opinion and Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito each authored a dissent.

The concluding paragraph of the court's majority opinion read:

“	No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.	”
—Opinion of the Court in Obergefell v. Hodges

Election results

Florida Amendment 2 (2008)
Result		Votes	Percentage
a Yes		4,890,883	61.92%
No		3,008,026	38.08%

Election Results via: Florida Department of State Division of Elections

Text of measure

The ballot title read:

“

FLORIDA MARRIAGE PROTECTION AMENDMENT

”

The ballot summary read:

“

This amendment protects marriage as the legal union of only one man and one woman as husband and wife and provides that no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

”

The fiscal impact statement read:

“

The direct financial impact this amendment will have on state and local government revenues and expenditures cannot be determined, but is expected to be minor.

”

Constitutional changes

The text of the amendment read:

	ARTICLE I, NEW SECTION DECLARATION OF RIGHTS 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.

Support

Supporters

Supporters included:

• Florida4Marriage, sponsor
• Florida Governor Crist
• W. James Favorite, pastor of Beulah Baptist Institutional

On September 30, 2008, a group of church leaders from around the country met outside the Miami-Dade County Courthouse to show their support of Amendment 2. In general, Florida's religious community was strongly in favor of the measure.

Arguments

Notable arguments made in support of the measure included:

• Supporters say the amendment would protect children by ensuring that only the form of marriage between a man and a woman would ever be celebrated in Florida.

• The Florida statute that already provides for a single form of marriage could be overturned by a court on constitutional grounds.

• Supporters say that if the amendment failed, school children could be indoctrinated in the gay lifestyle.

Opposition

Opponents

Opponents included:

• Florida Red and Blue
• The NAACP
• Rabbi Bruce Diamond
• The ACLU
• Florida League of Women Voters [1]
• Fairness for All Families [2]

Arguments

Notable arguments made in opposition to the measure included:

• The petition was acting as bait for the Presidential election in order to draw out conservative voters; there was already enough legislation in place currently.

• Healthcare and pension benefit plans which cover unmarried couples, even heterosexual older couples, living together and which were then legally valid may be adversely affected.

• Article I of the Florida Constitution, known as the Declaration of Rights, establishes rights, but this amendment would instead limit the right to marry.

• There were already other Florida Laws that expressly prohibit homosexual unions, so this amendments purpose is much larger than that and if passed will be used to restrict all relationships that are not a legal marriage under Florida's Statutes.

• Opponents said that elderly people in the state who, after being widowed, had subsequently chosen a domestic partnership in order to retain certain benefits, would be adversely impacted by the measure.

Campaign contributions

Amendment 2 was one of three ballot measures that appeared on November ballots around the country to ban same-sex marriage. Of these, the highest profile battle surrounded California Proposition 8. According to Stephen Gaskill, a spokesperson for Florida Red and Blue, the focus on the California measure complicated fundraising efforts for those fighting Florida Amendment 2.

Gaskill said, "Certainly if the California effort was not underway, it would be easier for Florida to raise money — that’s just a reality."

Polls

See also Polls, 2008 ballot measures.

Month of Poll	In Favor	Opposed	Undecided
September 2008	55 percent	41 percent	9 percent

Lawsuits

Lawyers for the Florida Red and Blue amendment opposition group filed a lawsuit on October 28, 2008 to force the pro-amendment group to disclose its donors and take their TV ads off the air. The lawsuit sought:

• The identification of donors to two groups, the Florida Family Action and the Florida Family Policy Council. These groups were headed by John Stemberger and were linked to the political campaign committee, Florida4Marriage, that put the initiative on the ballot.

• Florida4Marriage did not itself pay for a burst of pro-amendment TV advertising; rather, F4M (which is required to disclose its donors) reported an in-kind donation from the Florida Family Action group. That group said it was not required to disclose its donors; the lawsuit challenged that contention.

Shortly after Florida Red and Blue announced the filing of the lawsuit, Stemberger issued a press release criticizing the group for avoiding the issue of gay marriage in its anti-Amendment 2 campaign and instead raising concerns about the proposal’s impact on domestic partnerships between both straight and gay couples, particularly seniors.

Media editorial positions

Florida's newspapers, according to one source, were united in their opposition to the amendment. The statement read "...every single daily newspaper in Florida has taken a position against Amendment 2."

Path to the ballot

The initiative was able to collect enough signatures in order to qualify for the 2008 general election. This was done by volunteer circulators gathering 92,000 signatures, roughly 7,000 a day, in order to ensure the qualification of the measure.

Other states

Voters in twenty-six other states have passed constitutional amendments prohibiting same-sex marriage. Two others states, Arizona (Proposition 102) and California (Proposition 8) also had proposed amendments on the November ballot.

Existing statutes in Florida

Two existing Florida statutes prohibit same-sex marriage:

• Florida Statute 741.212(1) defines marriage as the legal union between one man and one woman and provides that the term "spouse" applies only to a member of such union (FL. Stat. 741.212(1),(3)).
• Florida also adopted a Defense of Marriage Act (DOMA) in 1997 which was codified as Florida Statute 741.212.

Judicial language

The amendment as written included a clause prohibiting judges from overturning the law. This was a response to what happened in Massachusetts, where a judge overturned that state's law banning same-sex marriage.

Related measures

Many historical marriage and family-related ballot measures regard the definition of legal marriage. The debate often revolved around whether marriage should be legally defined as the “union of one male and one female” or the “union of two persons [regardless of sex].” Voters chose to define marriage as between “one male and one female” in the following 30 states. The first constitutional prohibition was in 1998, and the latest one occurred in May 2012. All bans on same-sex marriage were overturned in the 2015 United States Supreme Court case Obergefell v. Hodges.

• 1998: Alaska
• 2000: Nebraska
• 2002: Nevada
• 2004: Arkansas
• 2004: Georgia
• 2004: Kentucky
• 2004: Louisiana
• 2004: Michigan
• 2004: Mississippi
• 2004: Missouri
• 2004: Montana
• 2004: North Dakota
• 2004: Ohio
• 2004: Oklahoma
• 2004: Oregon
• 2004: Utah
• 2005: Kansas
• 2005: Texas
• 2006: Alabama
• 2006: Colorado
• 2006: Idaho
• 2006: South Carolina
• 2006: South Dakota
• 2006: Tennessee
• 2006: Virginia
• 2006: Wisconsin
• 2008: Arizona
• 2008: California
• 2008: Florida
• 2012: North Carolina

See also

Suggest a link

• 2008 ballot measures
• Florida 2008 ballot measures
• List of Florida ballot measures
• Florida 2008 citizen initiatives.
• Florida ballot initiative news
• Procedures for qualifying an initiative in Florida
• Laws governing the initiative process in Florida
• Campaign finance requirements for Florida ballot measures

Articles

• Same-sex marriage measures raised over $100 million in 2008

External links

Basic information

• 2008 Florida constitutional amendments voter booklet
• Initiative information from Florida Secretary of State
• Marriage amendment ballot language PDF of the petition that was circulated
• Sample ballot (Monroe County)

Supporters/materials

• Yes on 2,
• Florida 4 Marriage

Opponents/materials

• Say No 2
• Vote No on 2
• Florida Red and Blue (Group opposing the initiative)
• Fairness For All Families, website of opponents

Additional reading

• Florida amendment awaits word on success (dead link)
• $101.1 Million Raised Around Same-Sex Partnership Ballot Measures In 2008