Court Overturns Florida’s Ban on Same-Sex Marriage to Allow Woman to Dissolve Civil Union

Court Overturns Florida’s Ban on Same-Sex Marriage to Allow Woman to Dissolve Civil Union

Photo credit: OZinOH via photopin cc

By Adrian Alvarez 

Goldberg Robb Attorney 

A Florida judge’s ruling that the state’s constitutional amendment banning same-sex marriage is unconstitutional under the U.S. Constitution is the third order of its kind to come out in less than a month. But in a twist on the debate over the right to marry, the judge’s order came about not to allow a couple to marry, but to allow a woman to divorce her estranged spouse. And the issue is about far more than the right to divorce, it’s also about access to justice.

In 2002, Heather Brassner entered a civil union with Megan Lane under Vermont’s civil union statute. Four years ago, the couple separated and Brassner is now in a committed relationship and wants to end her civil union. Although Brassner sought a dissolution of her civil union in Vermont, because she is not a Vermont resident, Vermont courts won’t dissolve the union without Lane’s approval and Lane has gone missing.

So Brassner sought relief in Broward County, Fla., the place she’s lived for the past 14 years. 

In 2008, Florida voters passed a constitutional amendment that bans same-sex marriage in the state. The amendment not only bans marriage, but is written so broadly that it includes civil unions. The amendment says:

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.

Unlike the right to marry, I know of no U.S. Supreme Court opinion recognizing a person’s right to divorce as part of an individual’s right to liberty and privacy. In fact, the Florida court that decided Brassner’s case based its decision on a federally protected right to marry, not any federally protected right to divorce.

But Brassner’s case illustrates how the right to divorce should not only be considered a civil right, but an access to justice issue. Without a divorce, Brassner would be unable to marry the person she loves even in states recognizing same-sex marriage. Ironically, because Florida doesn’t recognize her union, Brassner would be free to marry someone of the opposite sex in Florida even while remaining tied to Lane. The state’s constitutional ban therefore unwittingly permits bigamy.

But the bigger problem is that failing to grant a divorce could cause Brassner a whole host of other problems. For instance, she worries that Lane could make purchases in her name and as a result has to regularly check her credit score. In addition, same-sex couples that aren’t able to divorce are penalized under tax law. For instance, when married couples divide their assets after divorce, the division is not treated as a sale for tax purposes. Without the right to divorce, the division of assets could cause some same-sex couples to pay more in state income taxes the year of their divorce.

Today, Judge Dale Cohen immediately stayed his ruling in Brassner’s case. Florida Attorney General Pam Bondi has appealed the two recent decisions and is expected to appeal Cohen’s ruling as well.

“Attorney General Bondi has the duty to defend the law in this state and we welcome an appeal,” said Shannon McLin Carlyle, Brassner’s appellate lawyer and a member of Public Justice. “It is time for this issue to be addressed by our state’s highest Court.”

Carlyle is shareholder in The Carlyle Appellate Law Firm.

“Just as heterosexual citizens in Florida have the right to dissolve their out-of-state marriages and move on in their lives and remarry, so too should all consenting adults in Florida,” Carlyle said. “The time has come, the time is now. This is not just a gay right; it’s a civil right.”

Without a doubt, the right to divorce is inextricably tied to the right to marry. But the freedom to divorce should be seen as a legal entitlement protected in its own right. Making a person remained married to a spouse they no longer love creates emotional harm that’s just too painful to endure.

Not allowing someone access to fight for their legal freedom is unconscionable. 

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