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In 2015, the United States Supreme Court decision Obergefell v. Hodges granted same-sex couples the legal right to marry. The Florida Surgeon General remained reluctant to issue marriage certificates because the Florida statute declaring same-sex marriage illegal had not been explicitly struck down. This led to Brenner v. Scott: Florida’s landmark case for same-sex marriage, where the court declared Florida’s Defense of Marriage Act unconstitutional. As a result of these cases, Florida began issuing marriage certificates to same-sex couples. The rest is history, right?

Unfortunately, no. Just because a statute is declared unconstitutional, does not mean it is automatically taken “off the books.” As bewildering as this may be, Florida’s Defense of Marriage Act is still technically part of Florida’s law. Same-sex couples could marry because the court in Brenner v. Scott placed an injunction on enforcement of this statute, which means that Florida government officials can take no steps to enforce or apply state provisions against same-sex marriage.

To fix this contradiction, Florida House and Senate members proposed a bill this legislative session that would repeal Florida’s Defense of Marriage Act. Senate Bill 254 and House Bill 6009, both aptly titled Marriage Equality, proposed to remove the “prohibition on the recognition of same-sex marriages” and repeal the statute declared unconstitutional in Brenner v. Scott. This bill was filed January 8, 2019 in both the House and Senate. On May 3, 2019, it was indefinitely postponed, withdrawn from consideration, and died in both chambers. This action means there is no longer potential for the bill to pass during this session. It will have to re-introduced next session, and the long process for a bill to become law will have to start over again.

The reality that the law contradicts itself often goes unnoticed. While this is certainly a bump in the road, the proposal of this bill is a step in the right direction towards equality for all in Florida. Florida’s next legislative session begins January 2020.


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