Memorandum in Opposition

Filing # 19709710 Electronically Filed 10/22/2014 07:58:58 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FAMILY DIVISION IN RE THE MARRIAGE OF HEATHER BRASSNER, Petitioner,

CASE NO. 13-012058 (37)

and MEGAN E. LADE, Respondent, and STATE OF FLORIDA, Intervenor-Respondent. _____________________________________/ STATE OF FLORIDA’S MEMORANDUM OF LAW IN OPPOSITION TO PETITIONER’S MOTION FOR DECLARATORY RELIEF The State of Florida responds to the petitioner’s motion for declaratory relief. If this Court reaches the constitutional issues, it should uphold the challenged laws because Florida’s marriage laws do not violate the United States Constitution.

I. The petitioner seeks a declaration that Florida’s marriage laws are unconstitutional.

Under Florida law, though, no party is entitled to a declaratory judgment unless he or she demonstrates “there is a bona fide, actual, present practical need for the declaration” and “that the antagonistic and adverse interest are all before the court.” Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991) (quoting May v. Holley, 59 So. 2d 636, 639 (Fla. 1952)). The petitioner nevertheless seeks a declaratory judgment against the absent respondent, who is not before the

court. The petitioner also seeks a declaration regarding the Court’s ability to dissolve same-sex marriages, even though the relationship at issue here is a Vermont civil union—not a same-sex marriage. No Florida appellate court has held that a civil union is equivalent to marriage for purposes of Florida’s dissolution of marriage laws. Because the petitioner cannot demonstrate “a bona fide, actual, present practical need for the declaration” she seeks, this Court “lacks jurisdiction to render declaratory relief.” Martinez, 582 So. 2d at 1170. 1 II. “It is a settled principle of constitutional law that courts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.” Pub. Defender, Eleventh Judicial Circuit of Fla. v. State, 115 So. 3d 261, 280 (Fla. 2013) (quoting Singletary v. State, 322 So. 2d 551, 552 (Fla. 1975)) (internal quotations omitted); State ex rel. Atl. Coast Line R. Co. v. State Bd. of Equalizers, 94 So. 681, 684 (Fla. 1922) (“Where a court can effectually and properly dispose of a case without passing upon the constitutionality of a statute involved, it is its duty to do so.”) (internal quotation and citation omitted).

If this Court must reach the constitutional questions, it still must presume the constitutionality of a challenged provision, insist that the challenger show the invalidity beyond doubt, and even then, limit the constitutional analysis to avoid broad constitutional pronouncements. Moreover, “statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome.” Pub. Defender, 115 So.

1

The petitioner also acknowledges that Vermont law allows dissolution of civil unions, even for nonresidents like her. She contends, though, that Vermont requires both parties to agree, and that she cannot secure the respondent’s agreement because she cannot find her. But Vermont’s limitations regarding dissolution of legal relationships it had authorized cannot operate to invalidate Florida’s laws regarding dissolution of marriage.

2

3d at 280; accord State v. Giorgetti, 868 So. 2d 512, 518 (Fla. 2004) (“We are also obligated to construe statutes in a manner that avoids a holding that a statute may be unconstitutional.”). “To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law.” Pub. Defender, 115 So. 3d at 280 (quotations and citation omitted). “A party who seeks to have an act of the Legislature declared unconstitutional must … not only show that [s]he is or will be injured by it, but [s]he must also show how and in what respect [s]he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown.” Atl. Coast Line R. Co., 94 So. at 684 (quotations and internal citation omitted); accord State ex rel. Utils. Operating Co. v. Mason, 172 So. 2d 225, 229 (Fla. 1964) (“This Court will not determine the validity of a statute unless the rights of a party are shown to be affected.”).

Florida’s marriage laws are consistent with the Fourteenth Amendment to the United States Constitution.2 The federal constitution does not prevent Florida’s voters, either directly or through their elected representatives, from maintaining the state’s definition of marriage. The policy questions relating to Florida’s marriage laws—whether Florida should recognize same-sex

2

The petitioner intimates arguments stemming from other provisions of the Florida Constitution.

Article I, section 27, of the Florida Constitution was added after those provisions, so those arguments lack merit. See Metro-Dade Fire Rescue Serv. Dist. v. Metro. Dade Cnty., 616 So. 2d 966, 969 (Fla. 1993) (explaining rule of constitutional construction that new amendment supersedes any preexisting constitutional provisions that are in conflict) (citing Floridians Against Casino Takeover v. Let’s Help Fla., 363 So. 2d 337, 341-42 (Fla. 1978)). The petitioner also suggests that Florida’s marriage laws violate the United States Constitution’s Full Faith and Credit Clause. However, section 2 of the federal Defense of Marriage Act, which remains in force and was passed pursuant to the authority granted Congress in Article IV, section 1, of the United States Constitution, authorizes a State to refuse “to giv[e] effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State … or a right or claim arising from such relationship.” Defense of Marriage Act § 2, 28 U.S.C. § 1738C. 3

marriages—are not at issue. Those questions, with “good people on all sides,” United States v.

Windsor, 133 S. Ct. 2675, 2710 (2013) (Scalia, J., dissenting), were instead before Florida’s voters, who elected to maintain the traditional definition of marriage. Any changes to that policy decision should come from the voters and not from courts. The Court should decline the petitioner’s invitation to invalidate the policy Florida’s citizens directly adopted six years ago.

A.

A State’s Definition of Marriage Does Not Implicate Federal Due Process or Equal Protection.

The petitioner asserts due process and equal protection challenges. The United States Supreme Court is the ultimate authority on interpreting the United States Constitution, and that Court has held that a traditional definition of marriage does not implicate due process or equal protection. Regulation of marriage is “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also Windsor, 133 S. Ct. at 2689-90 (“By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.”). The United States Supreme Court therefore unanimously dismissed, “for want of a substantial federal question,” an appeal from the Minnesota Supreme Court presenting the question at issue here—whether a state’s decision not to sanction same-sex marriage violated “due process of law under the Fourteenth Amendment” or “the equal protection clause of the Fourteenth Amendment.” Baker v. Nelson, 409 U.S. 810 (1972); Jurisdictional Statement of Appellants at 3, Baker v. Nelson, No. 71-1027 (U.S. Feb. 11, 1971); Baker v. Nelson, 191 N.W.2d 185, 185-86, 187 (Minn. 1971).

In Baker v. Nelson, two men were unable to marry because Minnesota law defined marriage as being between a man and a woman. Jurisdictional Statement of Appellants at 3-4, Baker v. Nelson, No. 71-1027 (U.S. Feb. 11, 1971); Baker, 191 N.W.2d at 185. The Minnesota Supreme Court held that the state’s law did not violate federal due process or equal protection, 4

Baker, 191 N.W.2d at 186-87, and the plaintiffs asked the United States Supreme Court for relief. On direct appeal, the Supreme Court summarily dismissed. See Baker v. Nelson, 409 U.S. 810 (1972). That dismissal was a decision “reject[ing] the specific challenges presented in the statement of jurisdiction,” and it “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented.” Mandel v. Bradley, 432 U.S. 173, 176 (1977).

The Supreme Court has not expressly overruled Baker v. Nelson. Before Windsor, numerous federal courts considering Baker’s holding in the context of state marriage laws recognized that it controls. See, e.g., Mass. v. HHS, 682 F.3d 1, 8 (1st Cir. 2012) (stating that Baker v. Nelson forecloses arguments that “presume or rest on a constitutional right to same-sex marriage”); McConnell v. Nooner, 547 F.2d 54, 55-56 (8th Cir. 1976) (recognizing that Baker v.

Nelson “is binding on the lower federal courts” regarding absence of federal right to same-sex marriage); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (concluding that Baker v. Nelson precludes equal protection challenge to “a state’s refusal to recognize same-sex marriage”), rev’d sub nom. Latta v. Otter, -- F.3d --, 2014 WL 4977682 (9th Cir. Oct. 7, 2014); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1088 (D. Haw. 2012) (noting that Baker “is the last word from the Supreme Court” that “state law limiting marriage to opposite-sex couples” does not violate Equal Protection Clause and “remains binding on this Court.”), vacated as moot, -- F. App’x --, 2014 WL 5088199 (9th Cir. Oct. 10, 2014); Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-05 (M.D. Fla. 2005) (noting that “Baker v. Nelson is binding precedent upon this Court” regarding Fourteenth Amendment challenge to Florida’s marriage law).

Courts are bound by Baker v. Nelson “until such time as the [Supreme] Court informs them that they are not.” Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (quotations, brackets, and citation omitted). Some recent federal court decisions have nonetheless found Baker v.

5

Nelson no longer binding because of “doctrinal developments.” To be sure, the Supreme Court explained that “unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.” Id. at 344 (quotations and citation omitted; emphasis supplied). But the “doctrinal developments” exception is necessarily a narrow one. After Hicks, the Supreme Court stated without qualification that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

The Supreme Court later reaffirmed that strict rule, advising lower courts not to “conclude [that] more recent [Supreme Court] cases have, by implication, overruled an earlier precedent.” Agostni v. Felton, 521 U.S. 203, 237 (1997) (emphasis supplied); accord id. at 20809, 237-38 (explaining that lower court correctly recognized that binding earlier Court precedent had to be followed, even if it could not “be squared” with later Court jurisprudence in area, “unless and until this Court reinterpreted the binding precedent”). Yet that is precisely what the petitioner seeks—a ruling based on an implication that the United States Supreme Court is prepared to overturn Baker v. Nelson. This Court must nonetheless follow Baker v. Nelson until the United States Supreme Court overrules it.

At any rate, Windsor—which dealt with a federal law defining marriage, which repeatedly discussed the virtually exclusive province of states to define marriage, and which did not even mention Baker—did not signal a doctrinal shift or offer any implication about what the Court might decide on issue presented here. The Court did not announce a new fundamental right

6

or a new protected class. Instead, Windsor expressly reaffirmed the principle at the heart of Baker v. Nelson, that definitions of marriage are left to the states. Furthermore, the United States Supreme Court’s decisions in Lawrence v. Texas 3 and Romer v. Evans, 4 which were limited in scope, do not support a finding of doctrinal shift. Cf. Lofton v. Sec’y, Fla. Dep’t of Children & Family Servs., 358 F.3d 804, 815-17, 826-27 (11th Cir. 2004) (rejecting argument that Lawrence v. Texas had broad application and finding “Romer [v. Evans]’s unique factual situation and narrow holding [] inapposite to this case”).

B.

The Rational Basis Test Applies.

The petitioner asserts that Florida’s marriage laws deprive her of due process and the equal protection of the laws. The petitioner also suggests that animus was the only motivating factor for the laws at issue. Based on legal precedent, these arguments cannot succeed.

The Due Process Clause includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests”—but only “those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition. . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal quotations and citations omitted). The Supreme Court has been reluctant to expand this concept of substantive due process: By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” lest the liberty protected by the Due Process

3

539 U.S. 558 (2003).

4

517 U.S. 620 (1996).

7

Clause be subtly transformed into the policy preferences of the Members of this Court.

Id. at 720 (internal quotations and citations omitted). Instead of being “objectively, deeply rooted in this Nation’s history and tradition,” same-sex marriage was not permitted in the United States until 2003 and not permitted in any country before 2000. See Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting).

Windsor does not change anything in this respect. Windsor did not find a new fundamental right to same-sex marriage or apply heightened scrutiny to the state definitions. See Windsor, 133 S. Ct. at 2705-07 (discussing absence of usual “substantive due process” language, lack of declaration of fundamental right, and apparent citation by majority to rational basis propositions) (Scalia, J., dissenting). Rather, it sought, and failed to find, a rational basis for Congress to override the states’ individual definitions of marriage as a matter of national policy.

See id. at 2695-96 (finding Congress had no basis to override what had been exclusive state authority to define marriage).

Had Windsor established a new fundamental right to same-sex marriage, it would have done so clearly. Cf. Glucksberg, 521 U.S. at 721 (noting requirement in “substantive-due-process cases” that there be “careful description of the asserted fundamental liberty interest”) (citation and internal quotation omitted). Instead, Windsor effectively reaffirmed the States’ respective authority to define and regulate marriage, see id., 133 S. Ct. at 2689-90, 2691-92, 2693, and disapproved of federal interference with state marriage law, see id. at 2693 (criticizing the federal law’s “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage”). Windsor did not limit the voters’ ability to determine state marriage policy.

8

The petitioner’s argument that Florida’s marriage laws violate federal equal protection guarantees also must fail. This argument conflicts with Baker v. Nelson. And to the extent the petitioner contends that the laws treat her differently based on sexual orientation, even that would warrant only rational basis scrutiny. Cf. Wilson, 354 F. Supp. 2d at 1305-06 (characterizing asserted right as one to marry someone of same sex and refusing to elevate such a right to fundamental status). As recently as last November, the Florida Supreme Court, in a case also cited and quoted by the petitioner, applied a rational basis analysis to its review of a claim of sexual-orientation discrimination. See D.M.T. v. T.M.H., 129 So. 3d 320, 341-42 (Fla. 2013) (holding that “[s]exual orientation has not been determined to constitute a protected class and therefore sexual orientation does not provide an independent basis for using heightened scrutiny to review State action that results in unequal treatment to homosexuals”); see also Lofton, 358 F.3d at 817-18 (rejecting application of heightened scrutiny to classifications based on sexual orientation). Based on these federal and state Supreme Court precedents, this Court must apply rational basis—not any heightened scrutiny.

C.

Florida’s Marriage Laws Satisfy the Deferential Rational-Basis Standard.

Rational-basis review is not about “the wisdom, fairness, or logic of legislative choices.”

FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). The question is not whether the policy is a good one; the question is whether the challenged classification rationally relates to a legitimate state interest. See Heller v. Doe, 509 U.S. 312, 320 (1993). Under this deferential standard, which this Court must apply, a legislative classification “is accorded a strong presumption of validity,” id. at 319, and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 320 (quotation and citation omitted; emphasis supplied).

9

Moreover, a state has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller, 509 U.S. at 320; but cf. Fla. Dep’t of Children & Families v.

Adoption of X.X.G., 45 So. 3d 79, 87 (Fla. 3d DCA 2010) (reading Cox v. HRS, 656 So. 2d 902 (Fla. 1995), as requiring evidentiary hearing in challenge under state equal protection clause).

Rather, “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.” Heller, 509 U.S. at 320-21 (internal quotations, brackets, and citation omitted; emphasis supplied).

The issue, therefore, is whether the petitioner can demonstrate that there is not even a conceivable reason for Florida’s voters or their elected representatives to define marriage as they have. Under current law, the petitioner cannot satisfy this showing. Florida has an unbroken history of defining marriage as being between a man and woman. See, e.g., Coogler v. Rogers, 7 So. 391, 393 (Fla. 1889) (defining “marriage” as “a contract … by a man and woman, reciprocally engaging to live … [as] husband and wife”). Indeed, as late as 1996, no state “at any time in American history [had] permitted same-sex couples to enter into the institution of marriage.” Fla. H.R. Comm. on Govtl. Ops., CS for HB 147 (1997) Staff Analysis 2 (final June 5, 1997) (quoting H.R. Rep. No. 104-664 at 3 (1996)). At a minimum, the U.S. Constitution permits Florida’s voters and Legislature to consider the experience of other States before deciding whether to overturn the traditional definition of marriage that has prevailed in Florida since its early years as a State. Cf. Robicheaux v. Caldwell, Case No. 2:13-cv-5090, 2 F. Supp. 3d 910, 2014 WL 4347099, at *6 (E.D. La. Sept. 3, 2014); Jackson, 884 F. Supp. 2d at 1116-18 & n.37. The petitioner, then, cannot show that there is no conceivable rational basis for the voters’ and Legislature’s policy

10

decisions. (The Florida voters of course remain free to amend their Constitution to expand the definition of marriage in the State, as some other States have recently done.)

Numerous courts applying the rational basis standard to state same-sex marriage prohibitions have found conceivable justifications for those laws and upheld them. See, e.g., Robicheaux, Case No. 2:13-cv-5090, 2 F. Supp. 3d 910, 2014 WL 4347099, at *5-6; Sevcik, 911 F. Supp. 2d at 1014-17; Jackson, 884 F. Supp. 2d at 1106-1118 & n.36; In re Marriage of J.B. and H.B., 326 S.W.3d 654, 677-78 (Tex. App. 2010); Conaway v. Deane, 932 A.2d 571, 630-31 (Md. 2007); Andersen v. King Cnty., 138 P.3d 963, 982-84 (Wash. 2006); Standhardt v. Super.

Ct., 77 P.3d 451, 461-64, 464-65 (Ariz. Ct. App. 2003); Singer v. Hara, 522 P.2d 1187, 1197 (Wash. App. 1974); Baker, 191 N.W.2d at 187; see also generally Dean v. D.C., 653 A.2d 307, 331-33 (D.C. 1995) (refusing to find new right to strike down traditional marriage law); Jones v.

Hallahan, 501 S.W.2d 588, 589-90 (Ky. 1973) (same).

Finally, the petitioner’s suggestion that the sole motivation behind Florida’s marriage laws was animus toward persons of different sexual orientations is incorrect. She offers no evidence to show that the comments of individuals reflected the motivations of the Legislature as a whole or the motivations of the millions of Floridians who supported the constitutional amendment. There are strong feelings on all sides of the policy debate, but that is not to say that the voters favoring Florida’s current law act with an animus toward others. Reasonable people can disagree about whether, as a policy matter, Florida should provide for same-sex marriage.

The challenged laws satisfy rational basis review. 5 Because Florida’s marriage laws are consistent with the United States Constitution, this Court should uphold the challenged laws.

5

Rational basis review applies here, but Florida’s marriage laws could satisfy higher levels of scrutiny. Cf. Florida Bar v. Went for It, Inc., 515 U.S. 618, 628-29 (1995).

11

III. Finally, if this Court determines that the petitioner is entitled to the relief she seeks because Florida’s marriage laws apply unconstitutionally to her, the Court should carefully limit its decision to the circumstances presented. The petitioner seeks an uncontested (default) dissolution of her same-sex civil union. Her constitutional challenges are only as-applied.

As a matter of law, any declaratory judgment this Court may enter is applicable only to the petitioner and respondent. See § 86.091, Fla. Stat. (“No declaration shall prejudice the rights of persons not parties to the proceedings.”). Nonetheless, because of the attention this case has received, the Court should make that limitation clear to the extent it enters an order declaring invalid any portion of Florida law. This would avoid public confusion or uncertainty regarding any declaration’s effect beyond this case.

The separate issues of whether Florida must allow same-sex marriages in the first place or whether Florida must recognize same-sex marriages in other contexts are not before this Court. Two consolidated appeals pending in the Third District Court of Appeal present the issue of whether Florida must issue marriage licenses to same-sex couples. See State v. Huntsman, Case No. 3D14-1783; State v. Pareto, Case No. 3D14-1816. 6 As does another consolidated challenge pending in the U.S. Court of Appeals for the Eleventh Circuit. See Sec’y v. Brenner et al., Case Nos. 14-14061, 14-14066. Lower court decisions in those cases currently are stayed, and they are on appeal. Any decision from this Court would not impact those cases or the stays associated with them.

6

In its earlier decision, which it subsequently vacated, the Court stayed the effectiveness of its order pending resolution of these appeals. The State suggests that would be an appropriate course here again, to the extent the Court grants the declaration.

12

CONCLUSION The petitioner is not entitled to the declaration she seeks, so this Court should deny the motion.

Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ Allen Winsor ALLEN WINSOR (FBN 16295) Solicitor General ADAM S. TANENBAUM (FBN 117498) Chief Deputy Solicitor General OFFICE OF THE ATTORNEY GENERAL The Capitol – PL01 Tallahassee, FL 32399-1050 Phone: (850) 414-3688 Fax: (850) 410-2672 allen.winsor@myfloridalegal.com adam.tanenbaum@myfloridalegal.com Counsel for the State of Florida

13

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22d day of October, 2014, a true copy of the foregoing memorandum was filed electronically with the Clerk of Court through the Florida Courts eFiling Portal, which shall serve via e-mail a copy to the following counsel of record and constitute compliance with the service requirements of Florida Rule of Judicial Administration 2.516(b) and Florida Family Law Rule of Procedure 12.080: NANCY K. BRODZKI, ESQUIRE pleadings@brodzkijacobs.com roberta@brodzkijacobs.com nancy@brodzkijacobs.com BRODZKI JACOBS & ASSOCIATES, P.L. 2855 North University Drive, Suite 520 Coral Springs, Florida 33065-1410 (954) 344-7737 Counsel for Petitioner SHANNON MCLIN CARLYLE, ESQUIRE scarlyle@appellatelawfirm.com served@appellatelawfirm.com psullivan@appellatelawfirm.com THE CARLYLE APPELLATE LAW FIRM 1950 Laurel Manor Drive, Suite 130 The Villages, Florida 32162-5602 (352) 259-8852 Counsel for Petitioner /s/ Adam S. Tanenbaum ADAM S. TANENBAUM Florida Bar No. 117498 Counsel for the State of Florida

14