Anthony Niedwiecki

The Real Impact of Florida's Amendment 2

Filed By Anthony Niedwiecki | October 06, 2008 2:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Amendment 2, Cynthia Hawkins-Leon, domestic partnership, Florida, Marriage Protection Amendment, New Jersey,, Stetson Law School, substantial equivalent

As most of you already know, Florida voters will go to the polls on November 4, 2008 to vote on an amendment to the Florida Constitution that attempts to limit the recognition of same sex relationships. Specifically, the proposed amendment, known in Florida as Amendment 2, does two things. It defines marriage between one man and one woman, and it also prohibits the recognition of any union that is treated as marriage or the substantial equivalent to marriage. The text of the amendment reads:

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.

The legal question that is raised by this proposed amendment is what the phrase "substantial equivalent" to marriage will mean under the law.

Last year, I saw a law professor from Stetson Law School say during a debate that Amendment 2 doesn't appear to do anything but ban marriage for same sex couples. She came to this conclusion by just reading the amendment. She didn't have any legal support for her conclusion, and she didn't discuss what has happened in the other states that have passed similar constitutional amendments. She simply stated that she knew what that phrase meant because she was a family law professor. I guess she thinks we should just trust her because this is her "specialty"!

Professor Cynthia Hawkins-Leon of Stetson Law School stated the following in a debate on Fox News 13 (Kathy Fountain's "Your Turn" program at the Fox 13 in Tampa, Florida) in November 2007:

Q: So let's say it has appropriately been brought to the ballot, do you believe that it opens the door or not to legal challenges to gay and straight domestic partnership benefits

A: In my view, as reading this, the ballot summary, and the full text, which is a sentence, no, I do not. Because, as a family law professor, and that's my specialty, a civil union is expressly different, which we're not talking about, expressly different from marriage. Gives less benefits, and a domestic partnership gives even less benefits to the parties than a civil union.

I didn't buy her conclusion. If the substantial equivalent to marriage does not include civil unions or domestic partnerships, then what is the purpose of that specific language in the amendment? So I spent the past few months trying to determine for myself how the phrase "substantial equivalent" to marriage would likely be defined under the law.

Over the next few weeks before the election, I plan to do a series of posts analyzing the potential legal meaning and impact of the language "substantial equivalent" to marriage. I will detail how similar language in other state marriage amendments has been treated legally and politically to show if and how the lessons from these other states will apply to Amendment 2.

Click here to see the proponent's arguments.
Click here and here to see the opponents' arguments

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

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I saw that interview with the "legal expert" from yes2marriage. I couldn't believe the lack of back-up or proof she had for her "opinion"!

I look forward to the future postings that outline exactly what the legal ramifications of amendments like these are.

Great post!

Michael Crawford Michael Crawford | October 6, 2008 9:48 PM

Passage of Amendment 2 would do great harm to LGBT families. It is sickening that we have to fight against these type of discriminatory amendments rather than focus on solving the real problems people are facing.

Amen to that, Michael. This amendment is a disgusting attempt to bring out ultra-conservative voters. We have such huge issue facing Florida (and the nation)- why do we need to make it harder for committed couples to have basic human rights?

Anthony, I really appreciate you digging thru this "substantial equivalent" crap. Every time I hear or read any of these "protect marriage" fools I wish I had my hip boots on.

BTW, a few of us mingled and chatted about Amendment 2 with those who braved the inclement weather on Saturday at Oakland Park Main Street Oktoberfest. Except for 1 mom (who was a bit frazzled with her young children) we found everyone else (gay and straight, old and young) very receptive to our information and vowed to vote no.

Thanks Dianne. I'll do my best to spell out the exactly what the ramifications of this vague language is.

By the way, what a small world! Waymon and I were at Oktoberfest all day (I'm running for Oakland Park City Commission as well). We found the crowd extremely receptive to our "Say No 2" message (it is an important part of any campaigning I do)!

I'm going to be involved in a series of town halls and debates on Amendment 2, so I'll be sure to keep everyone posted on them so they can come out and show support.

This is the most important issue facing our community in Florida right now and we all must come together to fight it.

We got drenched there as well!!

But it was worth it- we got to spread the message about Amendment 2 to lots of folks. Did you know Oakland Park is voting on a resolution against 2 soon? I'll be sure to post about it so everyone will know when to come out- the more cities that pass "Vote NO" resolutions, the better!

Voting no on ammendment 2 will have a greater negative impact on the future of this nation than the 9-11 terroist attack.The damages to the moral fivers of our sociaty would be devestating if not suesidal. The proponents of same sex marriges argue that its thier human right, because they could not help being born with thier same sex sexual drive.
Sexual predators have the same arguments, proponentes who are trying to legalize incest argue the same thing. Imagin if these laws pass, what would be of our children future, expecialy those who are addobpted.The fact is that most homosexual are not born homosexual, they are recruted and or a product of apathetic parents.

this is a ridiculous argument. As a gay male, I should have the right to marry the man of my choice as long as he is legally allowed to marry. I find it offensive that Juan equates passing a law allowing same sex marriages with legalizing incest and pedophilia.
Who cares what makes a person gay or lesbian. I was not recruited nor did i have apathetic parents. All men and women should have the legal right to marry whom they chose (as long as both are of legal age). If it be a sin, let God and God alone be the judge. The Bible says Judge not lest you be judged, condemn not lest ye be condemned.

In response to Juan, I think you were born too late.

Intolerance & bigotry are not noble causes.
The churches who inject themselves into the political arena should be just as willing to forfeit their tax exempt status. Their income should then be retroactively taxed just as any other business.
That should finally separate Church & State once & for all.
Thank you Juan for your astute comment. Please be sure to leave a mailing address so I can send you a much need dictionary.
Love & light, yours truly DJ Silvio

helene nerenburg | October 9, 2010 8:46 PM

Thank you for the information. I vote by absentee ballot and I am in the process of looking up the amendments. The first site did not tell me the whole story. I will definitely vote no on this amendment. Some of my friends are gay and should have the same rights as we do. It is pitiful that some people are so what they call "moral".