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Fla. Out-of-State Gay Marriage Challenge Brought by ACLU

By Brett Snider, Esq. on March 14, 2014 | Last updated on March 21, 2019

Gay marriage advocates aren't skipping a beat in the Eleventh Circuit, as the ACLU has filed suit on behalf of eight gay couples challenging Florida's refusal to acknowledge out-of-state gay marriages.

According to a press release, the American Civil Liberties Union (ACLU) filed suit on Thursday, naming Florida Gov. Rick Scott and Attorney General Pam Bondi as defendants in seeking to have the Sunshine State recognize legal same-sex marriages performed in other states.

Will this gay marriage challenge be much different than those in other circuits?

Focus on Out-of-State Same-Sex Marriages

Unlike some of the other federal challenges to same-sex marriage bans, this ACLU-backed complaint focuses specifically on 16 plaintiffs who were legally married in states that allow gay marriage. The eight couples, described in loving detail by the Florida chapter of the ACLU, were married at various points in the last decade in Iowa, New York, Massachusetts, and Washington, D.C.

The complaint does not touch on challenging Florida's refusal to actually marry same-sex couples -- that cause has been taken up by the National Center for Lesbian Rights (NCLR) in a case filed in Florida state court in January.

Instead, the Grimsley v. Scott case (see the complaint here) focuses on a more strictly Windsor line of argument that seems to have been successful in challenging other states' gay marriage bans.

Dropping Gay Marriage's 'Other Shoe'

We've discussed elsewhere how Supreme Court Justice Antonin Scalia has actually launched the last year of litigation in gay marriage, and this case is no exception. This Florida federal case puts a fine point on what the High Court's noted conservative said in Windsor:

"[t]hat Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the 'personhood and dignity' which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that 'personhood and dignity' in the first place. ... [N]o one should be fooled; it is just a matter of listening and waiting for the other shoe."

And it seems like the other shoe has dropped. The AP reports that in the last 30 days, similar challenges have already been filed in Alabama and Indiana -- not to mention the rulings against gay marriage bans in Texas, Utah, and Kentucky.

In many ways, the Grimsley plaintiffs are asking for even less. They simply ask for what states like Oregon have agreed to do without federal intervention: recognize out-of-state gay marriages. And their timing is pretty great. With the Ninth Circuit making an explicit acknowledgement that sexual orientation receives heightened scrutiny as a class, the Equal Protection odds look much better.

Bottom Line

Since Windsor, there hasn't been a single circuit court decision upholding a gay marriage ban, and it's unlikely the Eleventh Circuit will be the first.

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