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 check out the second post in this series:

“Florida’s Amendment 2: Florida Is No Connecticut!“

Crossposted from Bilerico-Florida