Sunday, January 31, 2010

"All-but-marriage" legislation introduced in Florida, a super-DOMA state

As readers of this site know, I've focused on super-DOMA states like Florida, in which state legislators, county commissioners or supervisors, and city council members have introduced or adopted laws establishing domestic partnerships, whether restrictive or expansive in the range of benefits offered. One recent example in Florida is South Miami.

Two state legislators in Florida have recently introduced legislation (S.232 and H.477) on domestic partnerships, as reports. They are state senator Eleanor Sobel (D-Hallandale) and state representative Richard Steinberg (D-Miami Beach). Their legislation would grant to domestic partnerships all the benefits and protections, and impose on them all the obligations, of marriage. (See Sec. 21 of S.232 , beginning at line 529.) But Florida's constitution (Art. I) bans not only same-sex marriage, but legal status for any relationship that is "treated as marriage" or is "substantially equivalent to" marriage. So how do Sobel and Steinberg avoid the appearance of proposing unconstitutional legislation? Here is one of the legislative findings in S.232 that concerns the super-DOMA amendment, with language I've highlighted:
The status of marriage in this state is limited by Art. I of the State Constitution to the union of one man and one woman and the Legislature does not seek to alter the definition of marriage in any way. The Legislature also finds, however, that recognition of domestic partnerships can provide an alternative mechanism for extending certain important rights and responsibilities to individuals who choose to form long-term, mutually supportive relationships. Such recognition will provide support to these familial relationships without affecting the definition of marriage, without creating or recognizing a legal relationship that is the substantial equivalent of marriage, and without affecting restrictions contained in federal law.
This provision about a state-DOMA amendment may be the first of its kind to declare, as a matter of "legislative finding," that the amendment does not bar enactment of a domestic partnership law that a court could otherwise interpret as prohibited.

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