Fla. Attorney General Appeals Same-Sex Marriage to 11th Cir.

By Mark Wilson, Esq. on November 17, 2014 | Last updated on March 21, 2019

Back in August, a federal district judge in Florida held that the state's same-sex marriage ban was unconstitutional. That was, of course, a lifetime ago in light of what's happened since: The Supreme Court punted, the Sixth Circuit upheld, and same-sex marriage is the law in 33 states (for now).

Well, the State of Florida isn't taking this lying down. Attorney General Pamela Bondi is appealing the district court's order. Does Florida's brief to the Eleventh Circuit have anything new that hasn't been dismissed by four other circuit courts already?

States' Rights Are (Almost) Limitless! (Please Ignore the 'Almost')

Yes, states "have nearly exclusive authority to define and regulate marriage." But there's the problem: The authority is nearly exclusive. Loving v. Virginia presents a problem, but the Sixth Circuit deftly distinguished it in DeBoer by pointing out that same-sex marriage was never in question in Loving because the Court there used the term "marriage," not "opposite-sex marriage." Loving, though, stands for the opposite proposition: That times change, and the state can't prevent people from marrying because the state doesn't like who the spouses are. That the case dealt with race doesn't mean the concept is limited only to race.

Hello, Baker, My Old Friend; I've Come to Distinguish You Again

And our old friend Baker v. Nelson is back. You remember that one? The summary denial of cert. from a Minnesota decision denying two men the ability to marry each other? The one where the Supreme Court said the case didn't present a federal question? The one that's been held invalid by every circuit (except the Sixth) because of "subsequent doctrinal developments"?

Yes, that one. Baker has never been explicitly overruled, argues the AG, so it's binding on the Eleventh Circuit. (Then again, neither has Korematsu v. United States, but times have changed just a teensy bit.) Sure, the AG acknowledges, there is such a thing as "subsequent doctrinal developments," but that's a narrow exception. Because Lawrence, Romer, and Windsor didn't deal with marriage, and none of them even mentions Baker, the AG concludes that Baker must still be good law.

Battle Over Abstraction

The AG faulted the district court for finding a fundamental right "to choose one's own spouse ... regardless of whom the individual chooses to marry." As we know from Michael H. v. Gerald D., the level of abstraction you use to define a right can define it right out of existence -- which is exactly what the Florida AG wants to do by examining a line of marriage rights cases, all of which looked at marriage in different contexts as a fundamental right.

The AG concludes that, because the cases "did not examine whether 'interracial marriage or debtor marriage or prisoner marriage' was deeply rooted in the Nation's history or tradition," it follows that marriage must be "the traditional, man-woman relationship."

Because the Sixth Circuit's opinion offers a bevy of plausible, "rational" reasons why a state would limit marriage to being between a man and a woman, Florida liberally salts DeBoer throughout, leading to the inevitable result that the Eleventh Circuit "would have to conclude that the identified bases in all of these cited cases were completely irrational." Maybe the Sixth Circuit didn't, the Seventh sure did.

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