Anthony Niedwiecki

Florida's Amendment 2: What Does "Substantial Equivalent" To Marriage Mean?

Filed By Anthony Niedwiecki | October 20, 2008 3:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Amendment 2, Florida, Lowe v. Broward County, marriage, Marriage Protection Amendment, substantial equivalent, Supreme Court

The third in a series of posts detailing the legal implications of Florida's proposed marriage amendment, Amendment 2.

As I stated in my most recent post, there is no real possibility that Florida will follow Connecticut's lead and legalize marriage for same sex couples. Instead, the real debate about Amendment 2 focuses on the part of the amendment that prohibits the recognition of any "legal union that is treated as marriage or the substantial equivalent thereof."

The phrase "substantial equivalent" is not defined by the amendment, nor is there any legal definition of the phrase in Florida law. The proponents of the amendment, however, point to two Florida state court decisions to try to show that the law has already defined the phrase "substantial equivalent" to marriage. This post will examine these two Florida cases and see if they do in fact give us any idea on how the phrase will be interpreted by Florida courts.

Lowe v. Broward County

Broward County established a registry in 1999 to allow unmarried couples to form domestic partnerships. The main purpose was to give domestic partners hospital visitation rights and to provide health insurance to the domestic partners of county employees.

A taxpayer subsequently challenged the registry by pointing to Florida's marriage laws that explicitly prohibit the recognition of same sex marriages. He essentially made two arguments in challenging the registry.

1. Broward County created a law that should have been left exclusively to the state.
2. The registry conflicted with the state law that bans the recognition of same sex marriages.1

In September 2000, the Florida 4th District Court of Appeals upheld Broward County's registry, essentially stating that domestic partnerships and marriages were not the same. The court focused on the fact that the registry did not "curtail any existing rights incident to a legal marriage, nor [did] it alter the shape of the marital relationship recognized by Florida law."2 At no point in the decision did the court define or address what constitutes a relationship that is the "substantial equivalent" to marriage.

The proponents of Amendment 2 use the Lowe decision to try to show that domestic partner registries are in no danger of being dismantled by the proposed amendment. Their reasoning, however, is seriously flawed. Specifically, the Lowe court analyzed the registry using Florida's marriage statute, which differs with Amendment 2 in two very significant ways.

Let's first look at Florida's marriage statute:

Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state. (emphasis added).

Now look at Amendment 2:

"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." (emphasis added).

As you can see, the marriage statute prohibits recognition of relationships "between persons of the same sex", while the proposed amendment would go even further and include "any other legal union," without limiting it to same sex relationships. In addition, the marriage statute only prohibits the recognition of relationships that are treated "as marriage," while Amendment 2 also affects those relationships that are the "substantially equivalent" to marriage.

Because the Lowes case was only applying the limited state marriage statute, it does not show how the courts would define and apply the very vague and much broader language in Amendment 2. Therefore, the Lowes case does nothing to help us understand the legal meaning of Amendment 2.

Florida Supreme Court Opinion on Amendment 2

The Florida Supreme Court issued an opinion in March 2006, evaluating whether Amendment 2's ballot title and summary complied with Florida state law. There were a few different parts to the opinion, but only two are really relevant to our discussion here. First, the court determined that the ballot only addressed one single issue. Generally, proposed constitutional amendments cannot ask more than one question. Second, the court determined that the purpose of the amendment was clear and unambiguous even though the court refused to define the phrase "substantial equivalent" to marriage.

The proponents often quote the part of the case that says Amendment 2 is "essentially inserting this statutory scheme into the constitution with language substantially similar to the statutory provision itself." They use this language to argue that the court has already defined and explained what Amendment 2 would do. They argue that nothing would change because Amendment 2 and the current marriage statute are pretty much the same. The problem with using this one sentence of the case is that it takes the quote completely out of context, and it was not meant to substantively define the meaning of Amendment 2.

The entire quote reads:

The proposed amendment is essentially inserting this statutory scheme into the constitution with language substantially similar to the statutory provision itself. Therefore, it cannot be said that the proposed amendment would substantially alter the function of any branch of government as the State is currently applying section 741.212. Although the proposed amendment may perform a function of the Legislature by implementing a public policy decision of statewide significance, it most certainly would not act to perform the functions of any other branch of government and, therefore, would not impermissibly alter or perform the function of multiple branches of government3. (emphasis added).

The court may be applying a pretty complicated legal rule here, but it is obvious that it is not defining the language of the amendment. It is essentially saying that the functions of the judiciary, executive branch, and legislature are not being changed by the amendment. In fact, the issue of whether Amendment 2 altered "the function of any branch of government" was not contested by anyone. The court said that it went through this part of its analysis only to "complete our constitutional responsibility."4

Again, let's make this very clear--this part of the opinion does not define or explain the "substantial equivalent" language of Amendment 2, nor did the court intend to do so.

It was only in the second part of the opinion where the court began to examine the purpose of the amendment, and it is this part of the opinion that should concern us all. Here, the court made a very important point that I have never seen mentioned by anybody in the fight for or against Amendment 2. In drawing an analogy with a 2004 Medical Liability Amendment, the court adopted the proposition that when a phrase in an amendment is undefined, "the issue as to the precise meaning of this term [is] better left to subsequent litigation, should the amendment pass."5

Let me repeat: the Florida Supreme Court said that when a term in an amendment is undefined, the precise meaning of that term will need to be litigated after the amendment passes.

There is only one real lesson we can draw from the Florida Supreme Court opinion--the exact meaning of the undefined phrase "substantially equivalent" to marriage will be thoroughly litigated in the courts for years if it passes. This is exactly what we have seen in other states that have passed marriage amendments with similar vague language.

My remaining posts on Amendment 2 will show how these other states have litigated and interpreted their amendments, and only then can we see the real potential impact of Amendment 2.

Be sure to read the rest of my series discussing the legal issues surrounding Amendment 2:
- The Real Impact of Florida's Amendment 2
- Florida's Amendment 2: Florida Is No Connecticut!
- Florida's Amendment 2: What Does "Substantial Equivalent" To Marriage Mean?
- Florida's Amendment 2: The Lessons from Michigan


1 Lowe v. Broward County, 766 So. 2d 1199, 1203 (DCA 4 2000).
2 Id. at 1205.
3 Advisory Opinion To Attorney General re Florida Marriage Protection Amendment, 926 So.2d 1229, 1235 ( 2006).
4 Id. at 1234.
5 Id. at 1238.

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Thanks for really breaking this down, Anthony!