CERTIFICATE OF TYPEFACE COMPLIANCE



IN THE DISTRICT COURT OF APPEALTHIRD DISTRICT OF FLORIDASTATE OF FLORIDA, Appellant/Intervenor-Defendant,v.CATHERINA PARETO, et al.,Appellees/Plaintiffs,andHARVEY RUVIN, as Clerk of the Courts of Miami-Dade County, Florida, in his official capacity,Appellee/Defendant.CASE NO. 3D14-1816L.T. Case No. 14-1661-CA-24STATE OF FLORIDA, Appellant/Intervenor-Defendant,v.AARON R. HUNTSMAN, et al.,Appellees/Plaintiffs,andAMY HEAVILIN, as Clerk of the Courts of Monroe County, Florida, in her official capacity,Appellee/Defendant.CASE NO. 3D14-1783L.T. Case No. 2014-CA-305-K________________________________________________________________BRIEF OF PROGRESSIVE CHOICE, INC., AMICUS CURIAE, IN SUPPORT OF APPELLEES/PLAINTIFFSStephen L. SpectorFlorida Bar No. 0000833215 South Monroe Street, Suite 400Tallahassee, FL 32301Tel: 850-681-6810; Fax: 850-681-9782sspector@litigator21@Co-counsel for Progressive Choice, Inc.David K. MillerFlorida Bar No. 213128BROAD AND CASSEL215 South Monroe Street, Suite 400Tallahassee FL 32301Tel: 850-681-6810; Fax: 850-681-9782dmiller@Counsel for Progressive Choice, Inc.TABLE OF CONTENTSTABLE OF AUTHORITIESiINTEREST OF THE AMICUS1SUMMARY OF THE ARGUMENT1ARGUMENT2 I. The reasoning in Windsor forecloses state anti-LGBT marriage laws2 II. State laws based on arbitrary and non-constitutional tradition cannot override plain language of the United States Constitution4 III. Other sources support equal rights for all persons12 IV. No justification is offered for the state laws12 V. Enforcing constitutional rights is a judicial function16CONCLUSION17CERTIFICATE OF SERVICE18CERTIFICATE OF TYPEFACE COMPLIANCE18TABLE OF AUTHORITIESCases Page No.Acceleration Nat'l Svc. Corp. v. Brickell Fin. Svcs. Motor Club, Inc., 541 So. 2d 738, 739 (Fla. 3d DCA 1989)4Baker v. Nelson, 409 U.S. 810 (1972)3, 9, 10, 11Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014)3, 5, 6, 7, 10Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014)3Bostic v. Schaeffer, 760 F.3d 352 (4th Cir. 2014)3, 10 Brenner v. Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2014),stay pending review denied, No. 14-14061 (11th Cir. Dec. 3, 2014)3, 11Campaign for Southern Equality v. Bryant, 2014 WL 6680570 (S.D. Miss. Nov. 25, 2014)4, 5, 8Conner v. Cone, 235 So. 2d 492 (Fla. 1970)10 DeBoer v. Snyder, 2014 WL 5748990 (6th Cir. 2014) 3D.M.T. v. T.M.H., 129 So. 3d 320 (Fla. 2013)8De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014)3Dep't of State, Div. of Elections v. Martin, 885 So. 2d 453 (Fla. 1st DCA 2004), aff'd, 916 So. 2d 763 (Fla. 2005)16Edelman v. Jordan, 415 U.S. 651 (1974).9Florida Dep't of Children and Families v. Adoption of XXG, 45 So. 3d 79 (Fla. 3d DCA 2010)8Hall v. King, 266 So. 2d 33 (Fla. 1972)10Hernandez-Montiel v. I.N.S., 225 F.3d 1084 (9th Cir. 2000)7Holley v. Adams, 238 So. 2d 401 (Fla. 1970)16Jernigan v. Crane, 2014 WL 6685391 (E.D. Ark. Nov. 25, 2014)4Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014)11Latta v. Otter, 771 F.3d 456 (9th Cir. 2014)3, 10Lawrence v. Texas, 539 U.S. 558 (2003)3, 9, 10, 15Lawson v. Kelly, 2014 WL 5810215 (W.D. Mo. Nov. 7, 2014)3Loving v. Commonwealth of Virginia, 388 U.S. 1 (1967)2, 4, 11Meyer v. Nebraska, 262 U.S. 390 (1923)11 MLB v. SLJ, 519 U.S. 102 (1996)11Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012)5Romer v. Evans, 517 U.S. 620 (1996)3, 10, 12Rosenbrahn v. Daugaard, 2014 WL 6386903, (D.S.D. Nov. 14, 2014) 4, 11Shands Teaching Hosp. & Clinics, Inc. v. Smith, 497 So. 2d 644 (Fla. 1986)17Skinner v. Oklahoma, 316 U.S. 535 (1942)11State ex. rel. Nuveen v. Greer, 102 So. 739 (1924)16 Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005)7Turner v. Salfey, 482 U.S. 78, 82 (1987)11United States v. Carolene Products Co., 304 U.S. 144 (1938)10Van Hook v. Blanton, 206 So. 2d 210 (Fla. 1968)4Watts v. State of Indiana, 338 U.S. 49 (1949)5Wilson v. Taylor, 733 F.2d 1539 (11th Cir. 1995)9Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013)PassimU.S. Constitution1st Amendment5, 95th Amendment1, 214th AmendmentPassimFlorida Constitution, Statutes and RulesFla. Const. Art. I § 271Fla. Const. Art. X § 4(b)14Fla. Stat. Ch. 6114Fla. Stat. § 90.50415Fla. Stat. § 121.4501(20)(a)14Fla. Stat. § 193.155(3)(a)2.13Fla. Stat. § 193.1554(5)(c)13Fla. Stat. §196.081(3)14 Fla. Stat. § 201.02(7)14Fla. Stat. § 238.17314Fla. Stat. § 440.16(1)(b)1. and 2.14Fla. Stat. § 627.6675(14)14Fla. Stat. § 741.04(1) 1Fla. Stat. § 741.2121, 13Fla. Stat. § 741.212(3)2Fla. Stat. § 744.309(2)(d)15 Fla. Stat. § 744.31215Other AuthoritiesAm. Psychiatric Ass’n, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974)6Bailey et al., Same-Sex Orientation Sexual Behavior and Evolution, Trends in Ecology & Evolution, Vol. 24 , Issue 8, 439 - 446 (Aug. 2009) (at: (09)00154-2)6Gassman et al, The Florida Legal Guide for Same Sex Couples (Haddon Hall Publishing 2014)13Gonsiorek, The Empirical Basis for the Demise of the Illness Model of Homosexuality, in Homosexuality: ResearchImplications for Public Policy (Gonsiorek & Weinrich eds., 1991)6Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techs. 18 (1957)5Florida Online Sunshine Search Statutes at , viewed Dec. 1, 201413INTEREST OF THE AMICUSProgressive Choice Inc. is a nonprofit charitable organization formed to promote social welfare by advancing policies to ensure equal protection and dignity for all citizens. It advocates for full equality for lesbian, gay, bisexual and transgender (LGBT) persons in the right to be married. Its founder and chair, Jamie Fontaine-Gansell, has led national LGBT political organizations and fought for LGBT rights for decades. The Court granted Progressive Choice leave to appear as amicus to support Appellees' challenge to Fla. Const. Art. I § 27 and Fla. Stat. §§ 741.04(1) and 741.212 ("the Florida laws") by an Order dated October 16, 2014. SUMMARY OF THE ARGUMENTThe Court must give effect to the 14th Amendment's mandate for due process and equal protection for "any person," without exception for same-sex couples, to override state laws enacted to stigmatize LGBT persons. The 5th and 14th Amendment protections are the same, so the reasoning in the Windsor case invaliding federal laws also invalidates the Florida laws. Sexual orientation is an immutable or innate characteristic and marriage is a fundamental right. Any argument that allowing same-sex marriage would degrade the traditional institution of marriage has no legitimate basis, as extending benefits and duties of marriage to same-sex couples and their families does not "change" the institution and appurtenant rights at all, or deprive heterosexual married couples of any rights. ARGUMENTThe reasoning in Windsor forecloses state anti-LGBT marriage lawsUnited States v. Windsor, 133 S. Ct. 2675 (2013), held that the right to marry confers a dignity and status of immense import, id. at 2692; and the federal Defense of Marriage Act (DOMA), by refusing to recognize same -sex marriage, publicly burdened and stigmatized same-sex couples and their families, id. at 2693-94, for no legitimate reason, id. at 2696. This rendered DOMA invalid as violating due process and equal protection guarantees of the 5th Amendment. Id. at 2695-96. The state seeks to avoid Windsor by arguing that the same law is valid if enacted by the state. Fla. Stat. § 741.212(3) tracks the language of the invalid federal DOMA and has the same purpose and effect to stigmatize LGBT persons. Windsor points out that the 5th and 14th Amendments contain the same due process and equal protection guarantees. Id. at 2695. Thus state laws are subject to the same constitutional limitations. This reasoning leaves no loophole for states to enact counterpart laws as Florida has done. Moreover, the Court cited its main precedents holding state laws invalid that arbitrarily discriminate in marriage status or against LGBT persons: State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U.S. 1 … (1967)…. Windsor, at 2691.‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ” Romer v. Evans, 517 U.S. 620, 633, … (1996). Windsor at 2692; also cited at 2693.The States' interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U.S. 558, 567, … (2003). Windsor at 2692.Windsor did not cite the main case cited by the state, Baker v. Nelson, 409 U.S. 810 (1972). Nor did it caveat that states can still discriminatorily ban LGBT marriage. The reasoning and omissions invited challenges to state laws.Federal circuits almost uniformly apply Windsor to invalidate state anti-LGBT marriage laws. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. den., 135 S.Ct. 308; Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert. den., 135 S.Ct. 271; Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert. den., 135 S.Ct. 316; Latta v. Otter, 771 F.3d 456 (9th Cir. 2014). Contra, DeBoer v. Snyder, 2014 WL 5748990 (6th Cir. 2014) (overruling district court decisions that held gay marriage bans invalid in four states; one circuit judge dissenting). In circuits that have not addressed the issue, most federal district courts hold same-sex marriage is a constitutional right. See Brenner v. Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2014) (holding Florida laws invalid), stay pending review denied, No. 14-14061 (11th Cir. Dec 3, 2014). See also De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Lawson v. Kelly, 2014 WL 5810215 (W.D. Mo. Nov. 7, 2014); Rosenbrahn v. Daugaard, 2014 WL 6386903 *12 n. 5 (D.S.D. Nov. 14, 2014) (collecting cases); Jernigan v. Crane, 2014 WL 6685391 (E.D. Ark. Nov. 25, 2014); Campaign for Southern Equality v. Bryant, 2014 WL 6680570 *2 (S.D. Miss. Nov. 25, 2014) (collecting cases). State laws based on arbitrary and non-constitutional tradition cannot override plain language of the United States ConstitutionThe 14th Amendment must be applied according to its plain language. It expressly speaks in universal terms:… nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added) "Any" means "every or all" or "without restriction or exception." Acceleration Nat'l Svc. Corp. v. Brickell Fin. Svcs. Motor Club, Inc., 541 So. 2d 738, 739 (Fla. 3d DCA 1989) (citing dictionaries). "Any person" includes LGBT persons. The 14th Amendment limits "states' rights" to prohibit persons from marrying one another. Loving, 388 U.S. 1 (rejecting a "states' rights" argument to hold longstanding state laws prohibiting racial intermarriage invalid as promoting white supremacy). Florida courts promptly followed Loving to invalidate Florida's miscegenation law. Van Hook v. Blanton, 206 So. 2d 210 (Fla. 1968). The state's argument is that states traditionally promote heterosexual exclusivity. However this "tradition" is not found in the United States Constitution and does not override the plain language of the 14th Amendment.The state does not explore the source of this "tradition" or what interest it has in enacting the tradition into law. The folkways and resulting laws reflect ancient prejudices that same-sex orientation is a "sin" or a "disease," that same-sex relations are "unnatural" and should be a "crime." The state's brief does not discuss these prejudices, tacitly admitting they are factually and legally unsupported.The state does not cite religious beliefs that same-sex orientation is a "sin," as that would violate the 1st Amendment Establishment and Free Exercise Clauses. Nor does the state argue that same-sex orientation is a "disease." Rather it is an immutable characteristic like race or gender that does not affect one's value as a person, citizenship, or ability to contract or enter loving relations. Science has determined that sexual orientation is an immutable or innate characteristic. In 1957 a National Institute of Mental Health sponsored study found no evidence to classify same-sex orientation as a mental disorder. Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techniques 18 (1957) (at: ). In 1973 the American Psychiatric Association reversed an earlier position and declassified homosexuality as a mental disorder based on research that found no scientific support for the classification. It found that LGBT persons function as well as heterosexuals in all aspects of society and interpersonal relationships. See Am. Psychiatric Ass’n, Position Statement: Homosexuality and Civil Rights, in 131 Am. J. Psychiatry 497 (1974). See generally Gonsiorek, The Empirical Basis for the Demise of the Illness Model of Homosexuality, in Homosexuality: Research Implications for Public Policy (Gonsiorek & Weinrich eds., 1991). Same-sex orientation commonly occurs in nature (in most other species). Bailey et al., Same-Sex Orientation Sexual Behavior and Evolution, Trends in Ecology & Evolution , Vol. 24 , Issue 8, 439 - 446 (Aug. 2009) (at: (09)00154-2).The consensus of published peer-reviewed scientific studies, including prenatal hormone or genetic studies, family history studies, twin studies, molecular biology, biophysiological, brain anatomical and hormonal linkage studies, concludes that sexual orientation is an innate and immutable human characteristic. It is not a product of learning or choice. It is not subject to change by "treatment." Nor are LGBT persons "converted" by denying them rights everyone else enjoys. As immutability involves no choice or control, it is a strong basis to extend legal protections like those afforded race and sex classifications, and it is wrong to punish or discriminate against a person for this reason. See Baskin, 766 F.3d at 657-58 (discussing scientific literature and concluding “there is little doubt that sexual orientation…is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice"); Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000) (“[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them”), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005). Also, the nation has now decided that openly LGBT persons can serve in its armed forces (and presumably be subject to conscription if needed). One of the nation's "traditions" (a fair and rational tradition) is that if a person is eligible to sacrifice and die for this country, he or she should be treated equally under its laws.Rather than focus on the stigma, proponents try to label these laws in a positive light, as "protecting traditional families" to "foster procreation." But these laws do not protect families; rather the opposite. Families are not protected by refusing some persons the opportunity to become families, based on immutable characteristics. Legitimate goals of family protection can be accomplished without excluding or stigmatizing LGBT persons. Procreation continues apace both within and outside marital boundaries and by nontraditional means, and is not burdened where same-sex couples can legally marry. The summary judgment order in Pareto, at pp. 21-22; and Judge Posner's well-reasoned opinion in Baskin, 766 F.3d 648, expose these labels as pretextual. The state offers no rational reason to subordinate the welfare of these families and children to an unsupported tradition. Same-sex couples are competent to rear children – their own or others'. The state allowed LGBT persons to be foster parents and guardians, and this Court recognized a constitutional equal right to be adoptive parents in Florida Dep't of Children and Families v. Adoption of XXG, 45 So. 3d 79 (Fla. 3d DCA 2010). The Court there cited trial court findings based on social and medical science research, proving the fitness of LGBT persons to serve as parents. Id. at 86-87. It necessarily rejected any arguments that "natural law" limits a family to heterosexuals. Since LGBT persons can be natural parents, foster parents, guardians and adoptive parents, a state law limiting marriage to heterosexual couples undermines federal constitutional protection for family rights of both parents and children. See D.M.T. v. T.M.H., 129 So. 3d 320, 328 (Fla. 2013).The state does not offer a "crime" justification either. The 14th Amendment precludes states from criminalizing same-sex relations between consenting adults. Personal decisions relating to sexual relations, procreation and child-rearing are protected because the Constitution demands respect for personal autonomy and “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do”). Lawrence v. Texas, 539 U.S. 558, 574 (2003). The Court did not disavow the dissent's prediction that this ruling will allow LGBT persons to claim a constitutional right to marry. Cf. id. at 600–05.In sum, anti-LGBT traditions have no support in the United States Constitution and do not override the 14th Amendment's plain language. The state relies heavily on the summary decision in Baker v. Nelson, 409 U.S. 810 (1972), which declined review of a state court decision upholding a law banning same-sex marriage as not presenting a substantial federal issue. However a summary disposition lacks the precedential value of a Supreme Court opinion addressing the merits. Edelman v. Jordan, 415 U.S. 651, 671 (1974). Lower courts are not bound by such decisions if "doctrinal developments" short of express overruling indicate otherwise. This case is a paradigm "doctrinal development" case to avoid Baker. As discussed above, facts and circumstances have clearly changed since 1972. The Constitution should be applied to give effect to new scientific knowledge. United States v. Carolene Products Co., 304 U.S. 144 (1938). A prior case finding a law is valid does not bind future courts if the facts change, Conner v. Cone, 235 So. 2d 492, 498 (Fla. 1970); Hall v. King, 266 So. 2d 33, 35 (Fla. 1972). The Supreme Court did not indicate that Baker survives the developments in Lawrence, Romer, and Windsor, despite the practical need to expressly say so if that result were intended. In Windsor the Second Circuit held that doctrinal developments had overtaken Baker. Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir. 2012) ("Even if Baker might have had resonance for Windsor's case in 1971, it does not today… In the forty years after Baker, there have been manifold changes to the Supreme Court's equal protection jurisprudence," discussing these changes). The Supreme Court affirmed this decision without mentioning Baker. 133 S. Ct. 2675. Other federal courts almost uniformly agree that doctrinal developments have overtaken Baker. See Latta,771 F.3d __ (“As any observer of the Supreme Court cannot help but realize, this case and others like it present not only substantial but pressing federal questions”); Baskin, 766 F.3d at 660 (“Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions ... make clear that Baker is no longer authoritative”); Bostic, 760 F.3d at 375 (“In light of the Supreme Court's apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that case, we decline to view Baker as binding precedent....”); Kitchen v. Herbert, 755 F.3d 1193, 1208 (10th Cir. 2014) (“we think it is clear that doctrinal developments foreclose the conclusion that the issue is, as Baker determined, wholly insubstantial”); Brenner, 999 F.Supp.2d at 1291 (“[I]ntervening doctrinal developments ... have sapped Baker's precedential force”); Rosenbrahn , 2014 WL 6386903 at *12 n. 5 (collecting cases through date of decision).On October 6, 2014, the Supreme Court denied review of decisions in the Fourth, Seventh, and Tenth Circuits. On November 12, 2014, the Court declined to stay orders from Kansas, Idaho and Alaska. On December 3, 2014, the Eleventh Circuit denied a stay in Brenner. These decisions allow same-sex marriages to proceed and rights to vest in many states. There is no logical reason to deny review and stays of lower court rulings in conflict with Baker unless Baker is inoperative. The right to marry is fundamental. E.g., Loving, 388 U.S. at 12; see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Turner v. Salfey, 482 U.S. 78, 82, 94-99 (1987); MLB v. SLJ, 519 U.S. 102, 116 (1996). The state does not reject this rule; indeed, many state policies confirm the importance of marriage to both the participants and society. Instead, the state offers a circular argument that marriage is a "heterosexual fundamental right" but this "fundamental right" becomes neither "fundamental" nor a "right" if LGBT persons participate. No rational basis is offered to change the nature of a right from fundamental to nonexistent when exercised by a disfavored class whose status is innate and immutable.Other sources support equal rights for all personsThe Circuit Court in Pareto cited the Declaration of Independence, which provides that "all men are created equal and endowed by their creator with certain inalienable rights, to life, liberty and the pursuit of happiness." The Declaration and Lincoln's Gettysburg Address, which confirmed this national purpose ("… a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal") informed the 14th Amendment. None of these exclude LGBT persons from the national purpose to establish universal equal rights. While these documents lack the legal status of the Constitution, they are not meaningless; they express the nation's highest aspirations for humankind. This nation did not need to adopt any more laws to implement equal rights, because the 14th Amendment is a self-executing mandate for equal rights for all persons, and can be applied in light of this national purpose.No justification is offered for the state lawsRomer, 517 U.S. at 632, invalidated a state constitutional amendment that denied LGBT persons a broad range of rights and privileges: First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.Windsor followed this reasoning to invalidate the DOMA, which tried to deny rights under a host of federal laws and regulations to LGBT persons.The Florida laws suffer the same defect. Fla. Stat. § 741.212 defines the term "marriage" in any statute or rule to mean only a legal union between one man and one woman as husband and wife, and the term "spouse" to mean only a member of such a union. This law affects 202 state statutes that use the terms "marriage" and 400 state statutes that use the word "spouse." Pareto's Complaint par. 8 lists some important legal rights under state laws referring to marriage that are denied to same-sex couples. A thorough discussion of the legal and practical effects of discrimination in marriage is found in Gassman et al, The Florida Legal Guide for Same Sex Couples (Haddon Hall Publishing 2014). Some laws confer tax, insurance, or pension benefits on married persons. Denying these benefits to same-sex couples financially penalizes them (in effect redistributing wealth to heterosexuals). E.g., see Fla. Stat. §§ 193.155(3)(a)2. and 193.1554(5)(c) (transfer between husband and wife is not deemed change in ownership that triggers tax increases for residential property); §196.081(3) (tax exemption for disabled veteran's surviving spouse); and § 201.02(7) (documentary stamp tax not due on deed between spouses or former spouses). Is there a rational reason to tax same-sex couples more than heterosexual couples?See also Fla. Stat. § 121.4501(20)(a) (FRS benefits payable to spouse of member who dies without naming beneficiary); § 238.173 (teacher pension allowance to surviving spouse); § 440.16(1)(b)1. and 2. (worker's compensation benefit to surviving spouse); and §627.6675 (14) (health care policy conversion privilege to surviving spouse). LGBT persons perform equal employment service to vest pension rights and pay equal insurance premiums, so why does the state require them to subsidize heterosexual persons in these plans?Constitutional exemptions for homestead property promote home ownership, and inure to the owner's surviving spouse. Fla. Const. Art. X § 4(b). Why should this protection be denied to same-sex couples? Fla. Stat. Ch. 61 promotes efficient, orderly and fair dissolution of marriages. Same-sex couples are not covered by Chapter 61, so when they terminate relationships, their rights and duties are unpredictable. Does society benefit from imposing uncertainty and extra costs by forcing same-sex couples to litigate case by case to establish what rights if any arise from their relationship? The marital evidentiary privilege, Fla. Stat. § 90.504, promotes open communication between spouses. How does society benefit from forcing persons in committed same-sex relationships to testify against one another? Spouses are given preference in guardianship appointments. Fla. Stat. §§ 744.309(2)(d) and 744.312. Can LGBT persons not perform these duties as well? In addition to being denied legal rights, shared resources and economic support, same-sex couples are denied the intangible benefits of marriage (e.g., public acceptance, assurance of fidelity, and longer lifespan and better health). Absent from the state's brief is any reason to deny all legal, economic and intangible benefits of marriage to LGBT persons. The laws' real purpose is to impose a stigma. See Lawrence, 539 U.S. at 601 (Scalia, J., dissenting, "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples"). But public disapproval is circular reasoning, not reasoned justification, and the state offers no reason to disapprove of committed same-sex couples entering marriage.Finally, the state makes an absurd (and even disparaging) argument that judicially recognizing same-sex marriage may open the door to marriage by underage persons. Sexual orientation and age requirements have nothing to do with one another. Age requirements apply to all persons, LGBT or otherwise, and are based in medical and social science that underage persons do not understand the responsibility of commitments. Legal incompetence to contract (marry) is only temporal until the child reaches the age of consent. A marriage ban, by contrast, lasts a lifetime and lacks any rational basis. The law enforces other contracts by mature LGBT persons and offers no reason to treat them as if they were children, incapable of making sound decisions, when it comes to the choice to marry. Enforcing constitutional rights is a judicial function Persons who are denied the right to marry one another suffer immediate and irreparable legal injury. The state asks the Court to avoid "arrogating to [itself] those powers to make social policy that as a constitutional matter belong to the legislature and the state's citizens." In. Br. 9. The Court's highest duty is to enforce the United States Constitution and strike state laws in conflict therewith. State ex. rel. Nuveen v. Greer, 102 So. 739, 743 (1924); Dep't of State, Div. of Elections v. Martin, 885 So. 2d 453, 457 (Fla. 1st DCA 2004), aff'd, 916 So. 2d 763 (Fla. 2005). See also Holley v. Adams, 238 So. 2d 401, 405 (Fla. 1970) (act that violates Constitution must fall "not merely because the courts so decree, but because of the dominant force of the Constitution, an authority superior to both the Legislature and the Judiciary"). The state's cited case, Shands Teaching Hosp. & Clinics, Inc. v. Smith, 497 So. 2d 644, 646 (Fla. 1986) (In. Br. 9), supports this point, distinguishing common law rights, which the legislature can modify, from constitutional rights, which it cannot modify or refuse to enforce. Enforcing the 14th Amendment therefore does not "arrogate power to make social policy" because the people as a whole adopted the United States Constitution to be the supreme law of the land. An independent judiciary assures constitutional rights are protected. The 14th Amendment in particular limits state majority powers to prefer some citizens over others. CONCLUSIONThe Court must give effect to the plain language of the 14th Amendment expressly mandating due process and equal protection of the law without regard to sexual orientation, over any discriminatory "tradition" that the state tries to enact into law. The Circuit Court rulings should be affirmed.Respectfully submitted this 17th day of December, 2014.Stephen L. SpectorFlorida Bar No. 0000833215 South Monroe Street, Suite 400Tallahassee, FL 32301Tel: (850) 681-6810Fax: (850) 681-9782sspector@litigator21@Co-counsel for Amicus Curiae, Progressive Choice, Inc./s/ David K. MillerDavid K. MillerFlorida Bar Number 213128BROAD AND CASSEL215 South Monroe Street, Suite 400Tallahassee FL 32301Tel: (850) 681-6810Fax: (850) 681-9782dmiller@mubieta@Counsel for Amicus Curiae, Progressive Choice, Inc.CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Clerk of Court through the eDCA Portal to be served by E-Mail on counsel of record on the attached Service List, this 17th day of December, 2014.s/ David K. MillerAttorneyCERTIFICATE OF TYPEFACE COMPLIANCEI HEREBY CERTIFY that this brief was prepared in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). s/ David K. MillerAttorneySERVICE LISTCristina Alonso Jeffrey Michael CohenCARLTON FIELDS JORDEN BURT, P.A.Miami Tower100 Southeast 2nd Street, Suite 4200Miami, Florida 33131calonso@cschmidle@miaecf@jmcohen@pwatson@Elizabeth Schwartz ELIZABETH F. SCHWARTZ, P.A.690 Lincoln Road, Suite 304Miami Beach, FL 33139eschwartz@Sylvia H. WalboltLuis PratsNancy J. Faggianelli CARLTON FIELDS JORDEN BURT, P.A.4221 W. Boy Scout Blvd., Suite 1000Tampa, FL 33601swalbolt@rosborne@tpaecf@ lprats@lcoffey@nfaggianelli@ pparrey@ Mary B. Meeks MARY MEEKS, P.A.P.O. Box 536758 Orlando, Florida 32853marybmeeks@Counsel for Appellees/Plaintiffs Catherina Pareto, et al.Shannon P. MinterChristopher F. StollDavid C. CodellAsaf OrrNational Center for Lesbian Rights 870 Market Street, Suite 370San Francisco, CA 94102sminter@cstoll@dcodell@aorr@Counsel for Appellees,Catherina Pareto, et al. (Case No. 3D14-1816)Luis G. MontaldoP.O. Box 13267Miami, FL 33101cocgencounsel@larruza@-and-Eileen Ball MehtaBilzin Sumberg Baena Price & Axelrod LLP 1450 Brickell Avenue, Suite 2300Miami, FL 33131emehta@eservice@Counsel for Appellee/DefendantMiami-Dade County Clerk of CourtsRobert F. Rosenwald, Jr.Nicholas E. KallergisRaul J. Aguila, City AttorneyCity of Miami Beach1700 Convention Center Drive4th FloorMiami Beach, FL 33139robertrosenwald@nickkallergis@Counsel for Amici Curiae, City of Miami Beach, City of Orlando, and Village of Biscayne ParkElena Vigil-FarinasBernadette RestivoJessica ReillyThomas L. HamptonRestivo, Reilly & Vigil-Fari?as, LLC103400 Overseas Highway, Ste. 237Key Largo, FL 33037elena@bernadette@jessica@tom@Counsel for Appellees/Plaintiffs inCase No. 3D14-1783Ronald Saunders2018 Lawson RdTallahassee, FL 32308-4829ronesaunders@rsaunders@monroe-Counsel for Appellee/DefendantMonroe County Clerk of CourtsPamela Jo Bondi, Attorney GeneralAllen Winsor, Solicitor GeneralAdam S. Tanenbaum, Chief Deputy Solicitor GeneralOffice of the Attorney GeneralThe Capitol – PL01Tallahassee, FL 32399-1050allen.winsor@adam.tanenbaum@Counsel for Appellant/Intervenor-Defendant The State of FloridaMathew D. StayerAnita L. StayerHoratio G. MihetLIBERTY COUNSELP.O. Box 540774Orlando, FL 32854-0774court@Counsel for Amici Curiae, Florida Family Action, Inc., Florida Democratic League, Inc., and People United To Lead The Struggle For Equality, Inc.Jorge CesteroSasser, Cestero &Sasser, P.A.1800 Australian Ave. South, Suite 203West Palm Beach, FL 33409jcestero@-and-Cynthia L. GreeneLissette GonzalezGreene Smith &Associates, P.A.2555 Ponce de Leon Blvd., Suite 230Coral Gables, FL 33134gspa@lg@-and-Christopher W. RumboldGladstone &Weissman, P.A.101 Renaissance Centre101 N. Federal Highway, Suite 702Boca Raton, FL 33432cwr@Counsel for Amicus Curiae AmericanAcademy of Matrimonial Lawyers,Florida ChapterElliot H. ScherkerHilarie BassBrigid F. Cech SamoleCristina AlonsoGreenberg Traurig, P.A.Wells Fargo Center, Suite 4400333 Southeast Second AvenueMiami, FL 33131scherkere@bassh@cechsamoleb@miamiappellateservice@Counsel for Amicus CuriaeF. Martin Gill ................
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