[*] The author would like to thank Steven G. Gey, Professor, Florida State University College of Law, for his invaluable contributions to this Comment. Return to text.

[1] See David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 MICH. L. REV. 447, 452-61 (1996). Return to text.

[2] See SUZANNE SHERMAN, LESBIAN AND GAY MARRIAGE: PRIVATE COMMITMENTS, PUBLIC CEREMONIES 4-7 (Suzanne Sherman ed., 1992). Return to text.

[3] See id. Return to text.

[4] The fundamental point of this inquiry is not whether same-sex couples should be allowed to enter the sanctity of marriage, but whether same-sex marriages should be recognized by the American legal system. The debate concerns whether society should grant same-sex partners who choose to marry all the rights, privileges, and immunities bestowed upon different-sex marriages. Return to text.

[5] For a comprehensive study of state-sponsored persecution of homosexuals, see generally William N. Eskridge Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 FLA. ST. U. L. REV. 703 (1997); William N. Eskridge, Jr., Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981, 25 HOFSTRA L. REV. 817 (1997); William N. Eskridge, Jr., Democracy, Kulturkampf, and the Apartheid of the Closet, 50 VAND. L. REV. 419 (1997). Return to text.

[6] See Ronald Smothers, Atlanta Sued Over its Law On Benefits to the Unwed, N.Y. TIMES, Sept. 15, 1996, at A25; see also Marc Sandalow, Valentine's Party to Inaugurate S.F.'s Domestic Partners Law, SAN FRANCISCO CHRONICLE, Feb. 14, 1991, at A1. Return to text.

[7] Posik v. Layton, 695 So. 2d 759, 760-61 (Fla. 5th DCA 1997). Return to text.

[8] See Linda K. Wertheimer, Partners of Gays at Disney Get Benefits, ORLANDO SENT., Oct. 7, 1995, at C1. Return to text.

[9] See discussion infra Part III.A. Return to text.

[10] FLA. STAT. § 741.12 (1997) (denying legal recognition of same sex marriages, even those validly performed in other states). Return to text.

[11] See JOHN BOSWELL, CHRISTIANITY, SOCIAL TOLERANCE, AND HOMOSEXUALITY 26 (1980). Return to text.

[12] See id. Return to text.

[13] See FRANCISCO GUERRA, THE PRE-COLUMBIAN MIND 85 (1971). Much of these accounts came from western explorers who reported the customs of Native Americans. See id. at 68. Return to text.

[14] See DAVID F. GREENBERG, THE CONSTRUCTION OF HOMOSEXUALITY 60-61, 92 (1988). Return to text.

[15] None of the early Mesopotamian codes disapproved of same-sex relationships. See id. at 124-25. Return to text.

[16] See BOSWELL, supra note 11, at 69. Return to text.

[17] See id. at 186-94. Return to text.

[18] See William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1450-51 (1993). Return to text.

[19] See id. at 1452. Return to text.

[20] See id. Return to text.

[21] See id. at 1447. Return to text.

[22] See GREENBERG, supra note 14, at 279 (discussing the intolerance of homosexuality emerging in the thirteenth century). Return to text.

[23] See Eskridge, supra note 18, at 1472. Return to text.

[24] See JEFFREY WEEKS, SEX, POLITICS, AND SOCIETY: THE REGULATION OF SEXUALITY SINCE 1800 102-03 (John Stevenson ed., 1981). Return to text.

[25] See id. at 104 (emphasizing the transition of the perception of homosexuality as a sin to homosexuality as a sickness or mental illness). Return to text.

[26] See LILLIAN FADERMAN, SURPASSING THE LOVE OF MEN: ROMANTIC FRIENDSHIP AND LOVE BETWEEN WOMEN FROM THE RENAISSANCE TO THE PRESENT 190 (1981). Return to text.

[27] See VERN L. BULLOUGH & BONNIE BULLOUGH, CROSS DRESSING, SEX, AND GENDER 94-112 (1993) ("Some [cross-dressing women] even married other women . . . ."). Return to text.

[28] See SHERMAN, supra note 2, at 5-6 (discussing the performance of same-sex marriages in the United States by various religious groups). Return to text.

[29] 852 P.2d 44 (Haw. 1993). Return to text.

[30] See id. at 49-50. The governing statute restricted the marital relation to a male and a female. See HAW. REV. STAT. § 572-1 (1985). Return to text.

[31] This provision, modeled after the Equal Protection Clause of the U.S. Constitution, states: "No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry." HAW. CONST. art. I, § 5. The decision was based only on Hawaii state law, precluding review by the United States Supreme Court of whether Hawaii's refusal to recognize same-sex marriages violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. See Baehr, 852 P.2d at 50-60. For a comprehensive discussion of the "primacy" of state constitutions, see generally Rachel E. Fugate, Comment, The Florida Constitution: Still Champion of Citizens' Rights?, 25 FLA. ST. U. L. REV. 87 (1997). Return to text.

[32] Baehr, 852 P.2d at 64 (citation omitted). Return to text.

[33] Id. at 61 (quoting Appellee's brief at 7). Return to text.

[34] 388 U.S. 1 (1967). Return to text.

[35] See id. at 11-12 (holding that the Commonwealth of Virginia's ban on interracial marriages violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution). Return to text.

[36] See Baehr, 852 P.2d at 62-63 ("Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix." (quoting Loving, 388 U.S. at 3)). Return to text.

[37] See id. at 55-56; see also discussion infra Part IV. Return to text.

[38] See Baehr, 852 P.2d at 57. Return to text.

[39] Id. Return to text.

[40] See discussion infra Part V.A Return to text.

[41] Baehr, 852 P.2d at 68. Return to text.

[42] See Baehr v. Miike, No. CIV.91-1394, 1996 WL 694235, at *19 (Haw. Cir. Ct. Dec. 3, 1996). Return to text.

[43] See id. at *21-*22. Return to text.

[44] Susan Essoyan, Hawaii Approves Benefits Package for Gay Couples Laws, L.A. TIMES, Apr. 30, 1997, at A3. Return to text.

[45] Pub. L. No. 104-199, 110 Stat. 2419 (1996). Return to text.

[46] See Peter Baker, President Quietly Signs Law Aimed at Gay Marriages, WASH. POST, Sept. 22, 1996, at A21. Return to text.

[47] See H.R. REP. NO. 104-664, at 4 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906 (examining the legal implications of Baehr on the states and the federal government). The House report identified the following governmental interests protected by the legislation: "defending and nurturing the institution of traditional, heterosexual marriage;" "defending traditional notions of morality;" "protecting state sovereignty and democratic self-governance;" and "preserving scarce government resources." Id. at 9-13. Return to text.

[48] To accomplish this end, the Federal Act amended the U.S. Code by adding:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
1 U.S.C. § 7 (1996). This section, although unrelated to this inquiry, could be attacked via an independent equal protection challenge. See Romer v. Evans, 116 S. Ct. 1620, 1628 (1996) (stating that animosity towards a class of persons cannot satisfy even rational relationship review); see also infra Part V.B. Return to text.

[49] The Federal Act states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
28 U.S.C. § 1738c (1996). Return to text.

[50] Though not an exhaustive list, examples of similar "Defense of Marriage" statutes include ALASKA STAT. § 25.05.013 (Michie 1996); ARK. CODE ANN. § 9-11-107 (Michie 1996); GA. CODE ANN § 19-3-3.1 (1996); IDAHO CODE § 32-209 (1996); 5 ILL. COMP. STAT. 750/216 (West 1997); MICH. COMP. LAWS § 551.272 (1996); 23 PA. CONS. STAT. § 1704 (1996). Return to text.

[51] See discussion infra Part VI.B. Return to text.

[52] Ch. 97-268 § 1, 1997 Fla. Laws. 4957, 4957 (codified at Fla. Stat. § 741.212 (1997)); Bill Cotterell, Marriage Act Will Be Law Next Week, TALL. DEM., May 30, 1997, at A1. Return to text.

[53] Repub., Tampa. Return to text.

[54] Cotterell, supra note 52. Return to text.

[55] Press Release from Off. of the Gov., Gov. Lawton Chiles, (May 29, 1997) (statement regarding House Bill 147) (on file with Gov.'s Press Off.). Return to text.

[56] Section 741.212, Florida Statutes, states:

(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within, or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within, or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship. (3) For purposes of interpreting any state statute or rule, the term "marriage" means only a legal union between one man and one woman as husband and wife, and the term "spouse" applies only to a member of such a union. FLA. STAT. § 741.212 (1997). Return to text.

[57] See id. Return to text.

[58] See John Kennedy, Webster Wants Gay Marriages Outlawed, FT. LAUD. SUN SENT., Jan. 30, 1997, at B22. Return to text.

[59] Repub., Ocoee. Return to text.

[60] See Kennedy, supra note 58. Return to text.

[61] Bill Cotterell, Senator To Oppose Same Sex Marriages, TALL. DEM., Dec. 13, 1996, at B1. Return to text.

[62] See Fla. HB 147 (1997). Return to text.

[63] See FLA. S. JOUR. 211, 236 (Reg. Sess. Mar. 19, 1997) (Conference Comm. Rep. on Fla. CS for SB 272). Return to text.

[64] Fla. S. Comm. on Judiciary, tape recording of proceedings (Mar. 12, 1997) (on file with comm.) (remarks of Sen. John Grant) [hereinafter Judiciary Debate]. Return to text.

[65] See id. Return to text.

[66] See, e.g., Fla. H.R. Comm. on Govtl. Ops., HB 147 (1997) Staff Analysis 9 (Mar. 6, 1997) (on file with comm.) ("[S]taff could find no reliable data to assess the percentage of the population which would avail itself of same-sex married status if it were to become legal."). Return to text.

[67] Judiciary Debate, supra note 64 (testimony of Larry Spalding, ACLU of Florida). Return to text.

[68] Id. (testimony of John Dallas, Christian Coalition). Return to text.

[69] Id. (testimony of Carol Griffin, American Family Ass'n). Return to text.

[70] Dem., West Palm Beach. Return to text.

[71] FLA. H.R. JOUR. 306, 317 (Reg. Sess. 1997) (proposing and rejecting Amendment 1). Return to text.

[72] See id. Return to text.

[73] See id. Return to text.

[74] FLA. CONST. art. I, § 23. Return to text.

[75] See In re T.W., 551 So. 2d 1186, 1191-92 (Fla. 1989) ("Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution . . . it can only be concluded that the right is much broader in scope than that of the Federal Constitution."). Return to text.

[76] Id. at 1192. Return to text.

[77] B.B. v. State, 659 So. 2d 256, 259 (Fla. 1995) (quoting In re T.W., 551 So. 2d at 1193. Return to text.

[78] See Shevin v. Byron, 379 So. 2d 633, 636 (Fla. 1980) (recognizing privacy interests in marriage, procreation, contraception, and family relationships). Return to text.

[79] See Public Health Trust of Dade County v. Wons, 541 So. 2d 96, 98 (Fla. 1989) (recognizing the fundamental right to refuse a life-saving blood transfusion); In re Browning, 568 So. 2d 4, 17 (Fla. 1990) (finding the right to terminate feeding pursuant to patient's prior instructions); Singletary v. Costello, 665 So. 2d 1099, 1110 (Fla. 4th DCA 1996) (acknowledging the right to refuse medical treatment). Return to text.

[80] See In re T.W., 551 So. 2d at 1193. Return to text.

[81] See B.B., 659 So. 2d at 259. Return to text.

[82] See Rasmussen v. South Fla. Blood Serv., 500 So. 2d 533, 538 (Fla. 1987) (finding a privacy interest in not being named as a blood donor). Return to text.

[83] See Cox v. Florida Dep't of HRS, 656 So. 2d 902, 903 (Fla. 1995) (remanding to the lower court to determine the validity of the equal protection challenge). Florida is one of two states imposing a statutory ban on adoptions by homosexuals. See FLA. STAT. § 63.042(3) (1997) ("No person eligible to adopt under this statute may adopt if that person is a homosexual."); N.H. REV. STAT. ANN. § 170-B:4 (1996) ("[A]ny individual not a minor and not a homosexual may adopt."). Return to text.

[84] In its analysis, the Fourth District Court of Appeal looked to specific rights that had been recognized under the privacy amendment, and denied a facial challenge because the ban on homosexuals as adoption candidates did not implicate any specifically recognized rights. See Cox v. Florida Dep't of HRS, 627 So. 2d 1210, 1215 (Fla. 4th DCA 1993), aff'd, 656 So. 2d 902 (Fla. 1995). Such an analysis will not suffice in examining section 741.212, Florida Statutes, because it directly implicates marriage, which is specifically recognized as a fundamental right. See Shevin v. Byron, 379 So. 2d 633, 636 (Fla. 1980). Return to text.

[85] For example, a Florida court found that the discharge of a deputy sheriff because it was discovered he was homosexual violated his right to privacy. See Woodard v. Gallagher, No. 89-5776, 1992 WL 252279, at *2 (Fla. 9th Cir. Ct. June 9, 1992). Return to text.

[86] See Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993) ("[C]ouples do not have a fundamental constitutional right to same-sex marriage arising out of the right of privacy or otherwise."). Return to text.

[87] In re T.W., 551 So. 2d at 1192. Compare HAW. CONST. art. I, § 6 ("The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest."), with FLA. CONST. art. I, § 23 ("Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein."); Compare In re T.W. ("Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution . . . it can only be concluded that the right is much broader in scope than that of the Federal Constitution."), with Baehr, 852 P.2d at 57 ("[T]he privacy right found in article I, section 6 is similar to the federal right"), and State v. Mueller, 671 P.2d 1351, 1360 (Haw. 1983) ("[A] purpose to lend talismanic effect to 'the right to be left alone,' 'intimate decision,' or 'personal autonomy,' or 'personhood' cannot be inferred from the State provision, any more than it can from the federal decisions."). Return to text.

[88] See Washington v. Glucksberg, 117 S. Ct. 2258, 2268 (1997). Return to text.

[89] 262 U.S. 390 (1923) (invalidating a state law prohibiting the teaching of any modern language other than English in any public or private grammar school, and recognizing a right to educate one's children in the language of their ancestors). Return to text.

[90] 268 U.S. 510 (1925) (invalidating a state statute requiring students to attend public school and recognizing a right to educate and raise one's own children). Return to text.

[91] Meyer and Pierce provided the foundation for the Court's modern substantive due process doctrine, recognizing a right of privacy. See Roe v. Wade, 410 U.S. 113, 152-53 (1973). Return to text.

[92] Meyer, 262 U.S. at 398. Return to text.

[93] See id. Return to text.

[94] 381 U.S. 479 (1965). Return to text.

[95] In Griswold, the Court recognized a general right of privacy emanating from the Bill of Rights and held that a Connecticut statute forbidding the use of contraception violated the right of privacy. See id. at 485. Later cases employed this "penumbra" theory in Fourteenth Amendment substantive due process doctrine. See, e.g., Roe, 410 U.S. at 152. Regarding the fundamental right of marriage, the Griswold Court, speaking through Justice William O. Douglas, stated:

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Griswold, 381 U.S. at 486. Return to text.

[96] 388 U.S. 1 (1967). Return to text.

[97] Some interesting parallels exist between laws prohibiting same-sex marriage and anti-miscegenation laws. Some opponents of same-sex marriage argue that it must be prohibited to prevent homosexuality from "spreading." See Alissa Friedman, The Necessity for State Recognition of Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family, 3 BERKELEY WOMEN'S L.J. 134, 165-66 (1987). This argument parallels the common argument by white supremacists who espouse that interracial marriage would cause the mix of both races and produce inferior offspring. Others argue that children will become confused if persons of the same-sex are allowed to marry. This parallels the same contention made in terms of interracial marriage. See Teresa D. Marciano, Homosexual Marriage and Parenthood Should Not Be Allowed, in CURRENT CONTROVERSIES IN MARRIAGE AND FAMILY 293, 299-300 (Harold Feldman & Margaret Feldman eds., 1985). Return to text.

[98] Other decisions of the Court based on the Equal Protection Clause of the Fourteenth Amendment also recognize marriage as a fundamental right. See Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (striking down as unconstitutional a Wisconsin statute that prohibited marriage if one could not show that they could support children from prior relationships); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (striking down as unconstitutional a zoning statute forbidding extended families from living in the same residence); discussion infra Part V.B. Return to text.

[99] See Loving, 388 U.S. 1, 12 (1967) ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942))). Return to text.

[100] Id. Return to text.

[101] 478 U.S. 186 (1986). Return to text.

[102] Justice Powell, who concurred in the result of Bowers, publicly recanted his decision after his retirement from the Court. Justice Powell stated that he found Bowers "inconsistent in a general way" with Roe. See Linda Greenhouse, When Second Thoughts in Case Come Too Late, N.Y. TIMES, Nov. 5, 1990, at A5. Return to text.

[103] See Bowers, 478 U.S. at 194. Return to text.

[104] See id. at 196. Comparatively, in one of the Court's equal protection cases, the class of persons being discriminated against were not only unpopular, but as unauthorized aliens, their status in the United States was, in and of itself, illegal. See Plyler v. Doe, 457 U.S. 202, 223 (1982) (evaluating the state's denial of free public education to illegal alien children). Nonetheless, the Court extended protection as a suspect class and struck down the statute despite the group's illegal status. See id. at 230. Return to text.

[105] Bowers, 478 U.S. at 190. There was substantial debate between Justice White and the dissenting justices as to whether the issue was properly presented in light of the Court's privacy jurisprudence. See id. at 200-01 (Blackmun, J., dissenting) ("The sex or status of the persons who engage in the act is irrelevant as a matter or state law. . . . I therefore see no basis for the Court's decision to treat this case as an 'as applied' challenge."). Return to text.

[106] 431 U.S. 494 (1977). Return to text.

[107] Id. at 503 ("Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." (quoting Griswold v. Connecticut, 381 U.S. 479, 501 (1965))). Return to text.

[108] See Bowers, 478 U.S. at 196. The rational relationship test is discussed more thoroughly infra Part V.B.3. Return to text.

[109] See SHERMAN, supra note 2, at 4-7. Return to text.

[110] See Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977). Return to text.

[111] See Loving v. Virginia, 388 U.S. 1, 12 (1967). Return to text.

[112] See id. Return to text.

[113] 116 S. Ct. 1620 (1996). Romer involved a challenge to an amendment of the Colorado Constitution which precluded any state action protecting the status of homosexuals. See id. at 1622. Return to text.

[114] Under the Equal Protection Clause, rational relationship review is not satisfied when the electorate passes laws based solely on animus for an unpopular group. See id. at 1628. This analysis has also been applied to hippies, see U.S.D.A. v. Moreno 413 U.S. 528, 534 (1973), the mentally retarded, see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985), illegal alien children, see Plyler v. Doe, 457 U.S. 202, 223-24 (1982), and homosexuals, see Romer, 116 S. Ct. at 1628. Return to text.

[115] See Romer, 116 S. Ct. at 1622. Return to text.

[116] Id.; compare id. with Bowers v. Hardwick,478 U.S. 186, 196 (1986) (noting that "majority sentiments about the morality of homosexuality" are a legitimate state purpose). Return to text.

[117] See Romer, 116 S. Ct. at 1630 (Scalia, J., dissenting). Return to text.

[118] Indeed, Justice Stevens' dissenting opinion in Bowers evidences that at least one justice is dedicated to this outcome. He writes:

Although the meaning of the principle that "all men are created equal" is not always clear, it surely must mean that every free citizen has the same interest in "liberty" that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.
Bowers, 478 U.S. at 218-19 (Stevens, J., dissenting). Return to text.

[119] See Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Return to text.

[120] See Washington v. Glucksberg, 117 S. Ct. 2258, 2268 (1997). Return to text.

[121] See discussion infra Part V.B.2. Return to text.

[122] See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985). Return to text.

[123] See Korematsu v. U.S., 323 U.S. 214, 216 (1944) ("All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny."). Return to text.

[124] See Zablocki v. Redhail, 434 U.S. 374, 383 (1978). Return to text.

[125] In fact, excluding cases involving affirmative action, Korematsu is the only case in which the discriminatory statute was upheld despite the Court's application of strict scrutiny. The court found that in times of war, government may have a compelling interest to discriminate. See Korematsu, 323 U.S. at 224. Return to text.

[126] See Craig v. Boren, 429 U.S. 190, 197 (1976). Return to text.

[127] See United States v. Virginia, 116 S. Ct. 2264, 2271 (1996) (holding that a state-sponsored university's refusal to admit women violates the Equal Protection Clause). There remains some doubt as to whether the "exceedingly persuasive" standard extends beyond the education context, as this language seems to strengthen the level of scrutiny applied to previous gender-based classification case law. Compare id. with Craig, 429 U.S. at 197 ("To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives."). Return to text.

[128] See Romer v. Evans, 116 S. Ct. 1620, 1627 (1996) (describing rational relationship review). Return to text.

[129] See id. Return to text.

[130] See Baehr v. Lewin, 852 P.2d 44, 60 (Haw. 1993) (ruling that Hawaii's ban on same-sex marriage violated the Equal Protection Clause of the Hawaii Constitution because it classified on the basis of sex). Return to text.

[131] See Romer, 116 S. Ct. at 1624. Return to text.

[132] See Zablocki v. Redhail, 434 U.S. 374, 384 (1978). Return to text.

[133] See Romer, 116 S. Ct. at 1628 (ruling the amendment unconstitutional because it was based upon animus toward homosexuals). Return to text.

[134] "[O]ur statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes." Frontiero v. Richardson, 411 U.S. 677, 685 (1973). Return to text.

[135] FLA. STAT. § 741.212 (1997). Return to text.

[136] See Judiciary Debate, supra note 64. Return to text.

[137] See FLA. STAT. § 741.212 (1997). Return to text.

[138] 522 P.2d 1187 (Wash. 1974). Return to text.

[139] With respect to the Equal Rights Amendment to the Washington Constitution, which extended more protection than the federal Equal Protection Clause, the court stated that:

the purpose of the ERA is to provide the legal protection, as between men and women, that apparently is missing from the state and federal Bill of Rights, and it is in light of that purpose that the language of the ERA must be construed. To accept the appellants' contention . . . that the ERA must be interpreted to prohibit same-sex marriages would be to subvert the purpose for which the ERA was enacted by expanding its scope beyond that which was undoubtedly intended by the majority of the citizens of this state who voted for the amendment.
Id. at 1194. Return to text.

[140] Id. at 1196; cf. Baehr v. Lewin, 852 P.2d 44, 60 (Haw. 1993) ("It is the state's regulation of access to the status of married persons, on the basis of the applicants' sex, that gives rise to the question whether the applicant couples have been denied the equal protection of the laws in violation of article I, section 5 of the Hawaii Constitution."). Return to text.

[141] See Frontiero v. Richardson, 411 U.S. 677, 685 (1973); see also Singer, 522 P.2d at 1196 (stating that excluding same sex marriages from marriage status may be upheld under the rational relationship test). Return to text.

[142] See Zablocki v. Redhail, 434 U.S. 374, 383 (1978). Return to text.

[143] See discussion supra Part V.A. Return to text.

[144] This outcome is analogous to the Court's procedural due process jurisprudence. In order to claim a procedural due process right (i.e. the right to a hearing) a plaintiff must allege a property interest or a liberty interest. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (finding that a professor at a state college did not have a property interest in an expired contract). Although the courts define liberty interests, property interests are defined by the state in granting rights to its citizens. See id. In the context of the fundamental rights equal protection analysis and same-sex marriage, the argument is that having attached rights, privileges, and immunities to the fundamental right of marriage, Florida may not deny this fundamental right to a distinct class of citizens as a matter of federal equal protection law. Return to text.

[145] See Loving v. Virginia, 388 U.S. 1, 12 (1967). Return to text.

[146] 434 U.S. 374 (1978). Return to text.

[147] See id. at 384. Return to text.

[148] Id. (emphasis added) (finding unconstitutional a statute which forbade anyone from entering into a marriage who was under obligation to support non-custodial children). Return to text.

[149] Id. at 388. Return to text.

[150] See Romer v. Evans, 116 S. Ct. 1620, 1628 (1996). Return to text.

[151] Cf. Romer, 116 S. Ct. at 1629 (holding that a state constitutional amendment that discriminated against homosexuals could not survive rational relationship review because it bore no relationship to legitimate state interests). Return to text.

[152] See Plyler v. Doe, 457 U.S. 202, 223 (1982) (striking down a statute forbidding public education to illegal alien children even though education is not a fundamental right and by their presence in the country the children committed an illegal act). Return to text.

[153] Romer, 116 S. Ct. at 1627. But see Bowers v. Hardwick, 478 U.S. 186, 196 (1986). Return to text.

[154] Compare Romer, 116 S. Ct. at 1627 (animus toward a class lacks a rational relationship to legitimate state interests), with Bowers, 478 U.S. at 196 (morality sentiments of the majority are sufficient under rational relationship review). Return to text.

[155] Romer, 116 S. Ct. at 1627. Return to text.

[156] See id. at 1628 ("[The amendment] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board."). Return to text.

[157] See FLA. STAT. § 741.212 (1997) ("Marriages between persons of the same sex entered into in other jurisdictions . . . are not recognized for any purpose in this state."). Return to text.

[158] See U.S. CONST. amend. XIV, § 1 ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."). Return to text.

[159] See id. art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceeding shall be proved, and the Effect thereof."). Return to text.

[160] See Shapiro v. Thompson, 394 U.S. 618, 630-31 (1969) (holding that state denial of welfare benefits to residents of less than one year is unconstitutional). Return to text.

[161] See, e.g., Ward v. Maryland, 79 U.S. (12 Wall.) 418, 430 (1870) ("[T]he [Privileges and Immunities] clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union . . . ."). Return to text.

[162] See, e.g., Twining v. New Jersey, 211 U.S. 78, 97 (1908) ("[A]mong the rights and privileges of National citizenship recognized by this court are the right to pass freely from state to state."). Return to text.

[163] See, e.g., Edwards v. California, 314 U.S. 160, 175-76 (1941) ("We are of the opinion that the transportation of indigent persons from State to State clearly falls within [the] class of subjects [immune from regulation by the states]."). Return to text.

[164] See id. at 176. Return to text.

[165] Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986) (quoting Shapiro v. Thompson, 394 U.S. 618, 634 (1969)). Return to text.

[166] See Shapiro, 394 U.S. at 618, 634. Return to text.

[167] See FLA. STAT. § 741.212 (1997) ("[Same-sex marriages] are not recognized for any purpose in this state."). Return to text.

[168] See Shapiro, 394 U.S. at 634. Return to text.

[169] 394 U.S. 618 (1969). Return to text.

[170] See id. Return to text.

[171] See id. Return to text.

[172] See FLA. STAT. § 741.212 (1997). Return to text.

[173] Shapiro, 394 U.S. at 631 (quoting United States v. Jackson, 390 U.S. 570, 581 (1988)). Return to text.

[174] See Milwaukee County v. M.E. White Co., 296 U.S. 268, 276-277 (1935). Return to text.

[175] U.S. CONST. art. IV, § 1. Return to text.

[176] See Milwaukee County, 296 U.S. at 276-77. Return to text.

[177] U.S. CONST. art. IV. § 1. Return to text.

[178] See H.R. REP. NO. 104-664, at 19 (1996) ("The committee therefore believes that this situation presents an appropriate occasion for invoking our congressional authority under the second sentence of the Full Faith and Credit Clause to enact legislation prescribing what (if any) effect shall be given by the states . . . ."). Return to text.

[179] 142 CONG. REC. S5931-01, S5932 (daily ed. June 6, 1996) (letter from Professor Laurence Tribe to Senator Edward Kennedy). Return to text.

[180] Compare U.S. CONST. art IV, § 1 ("Full faith and credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other State."), with ARTS. OF CONFED. art. IV, para. 2 (1781) ("Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."). James Madison expounded that the Full Faith and Credit Clause in the Constitution "is an evident and valuable improvement on the clause relating to this subject in the Articles of Confederation." THE FEDERALIST NO. 42, at 271 (James Madison) (Clinton Rossiter ed., 1961). He went on to suggest that the Effects Clause would foster national uniformity, stating that "[t]he power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated in any stage of the process within a foreign jurisdiction." Id. Return to text.

[181] U.S. CONST. art. IV, § 1 (emphasis added). Return to text.

[182] 317 U.S. 287 (1942). Return to text.

[183] See Haddock v. Haddock, 201 U.S. 562 (1906). Return to text.

[184] See Williams, 317 U.S. at 303-04. Return to text.

[185] Not only would Hawaii have an interest in a valid marriage performed within its jurisdiction it may also "determine the extraterritorial effect of its judgment; but it may only do so indirectly by prescribing the effect of its judgments within the State." Thomas v. Washington Gas Light Co., 448 U.S. 261, 269-70 (1980). Therefore, if Hawaii would recognize same-sex marriages with all the legal rights, privileges, and immunities of different-sex marriages, Florida would be obliged to recognize the full scope of legal rights bestowed upon them under Hawaii law. Return to text.

[186] Williams, 317 U.S. at 299. Return to text.

[187] See id. at 301 (using the general language of "decrees of a state altering the marital status" with regard to inclusion within the scope of the Full Faith and Credit Clause). Return to text.

[188] See id. at 300. Return to text.

[189] See id. Return to text.

[190] See FLA. STAT. § 741.212 (1997) ("Marriages between persons of the same sex entered into in any jurisdiction . . . are not recognized for any purpose in this state."). Return to text.

[191] See Williams, 317 U.S. at 300. Return to text.

[192] See id. at 301 ("if decrees of a state altering the marital status of its domiciliaries are not valid throughout the Union . . . a rule would be fostered which could not help but bring 'considerable disaster to innocent persons' and 'bastardize children hitherto supposed to be the offspring of lawful marriage'" (quoting Haddock v. Haddock, 201 U.S 562, 628 (1906) (Holmes, J., dissenting)). Return to text.

[193] See Milwaukee County v. M.E. White Co., 296 U.S. 268, 276 (1935) (discussing the purpose of the Full Faith and Credit Clause). Return to text.

[194] Williams, 317 U.S. at 303. Return to text.

[195] See Loving v. Virginia, 388 U.S. 1, 9 (1967) (rejecting the state's argument that the Framers of the Fourteenth Amendment did not intend to make anti-miscegenation laws unconstitutional). Return to text.

[196] See Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404-405 (1856) (justifying American slavery because, at the time of the writing of the Constitution, African-Americans were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges"). Return to text.

[197] See Roe v. Wade, 410 U.S. 113, 130 (1973) (looking to the history of abortion in other cultures and finding prohibition of abortion unconstitutional regardless of a traditional ban against the practice in the United States). Return to text.

[198] Romer v. Evans, 116 S. Ct. 1620, 1628 (1996). Return to text.


2. Bowers v. Hardwick: Lack of a Fundamental Right
3. Romer v. Evans

B. Equal Protection of the Laws
1. Intermediate Scrutiny and Gender Classifications
2. Strict Scrutiny and the Fundamental Right of Marriage
3. Rational Relationship Review
VI. FLORIDA'S CONSTITUTIONAL DUTY TO RECOGNIZE SAME- SEX MARRIAGES LEGALLY SANCTIONED IN OTHER STATES
A. The Right to Interstate Travel
B. Defense of Marriage and the Full Faith and Credit Clause
VII. CONCLUSION
1. The Fundamental Right to Marriage