THE BLOG
07/24/2014 01:01 pm ET Updated Feb 02, 2016

Does Florida Really Hate Gay Marriage?

For just one brief and shining moment, gay people in Florida were treated equally when a courageous judge in Monroe County -- Luis Garcia, the Chief Circuit Court Judge -- decided that two men (Aaron Huntsman, 44, and William Lee Jones, 43) should be able to marry whomever they please, in this case, each other.

He ruled in their favor last April in the case the couple had filed against Amy Heavlin, the Monroe County Clerk of Court. Judge Garcia's opinion recognized the constitutional right to marriage and likened the denial of that right to outdated social norms that kept women from voting until 1920 and banned interracial marriage until 1967.

But before their honeymoon could even begin, Florida's 37th Attorney General, Pam Biondi, who apparently had no more important laws to enforce than Florida's ban on gay marriages, filed an appeal, essentially placing on hold any further same-sex marriages until Florida's Third District Court of Appeal and most likely the United States Supreme Court steps in with the final word on whether Florida's 2008 constitutional ban violates the equal protection clause of the United States Constitution.  Sadly, earlier this week Judge Garcia rejected a plea to allow same-sex marriages to continue until the appeals are exhausted, a process which could take years.

Why Does Florida Hate Gay Marriage?

For nearly 25 years, I have represented the families of those who have been negligently killed in Florida in all sorts of personal injury wrongful death cases, ranging from traffic accidents to medical malpractice.  Under Florida Statute Section 768.21(2),

"The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury."

According to Section 741.212, a surviving spouse must have been in a legally recognized marriage, defined only as the 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.  This definition applies to same-sex marriages that are performed in jurisdictions where they are legal.

This means that even if a same-sex couple is legally married in one of the other 19 states, no court in Florida can recognize their marriage for any purpose, including -- and I imagine especially -- in the context of a civil wrongful death case.

It's hard to know for sure the millions of dollars this seemingly ridiculous and clearly unconstitutional law saves the insurance company every time a car or truck accident or careless doctor takes the life of a loved one, leaving families emotionally and financially destroyed.  But I have personally seen it in my legal career at least a dozen times.

It's also hard for me really to believe that Florida's Republican Attorney General is so concerned about enforcing this particular law when Florida permits its doctors to operate without malpractice insurance or its drivers to drive without mandatory bodily injury coverage.  

When I think about it, who cares? The ban on same-sex marriage won't stop people from being gay; rather it just prevents them from publicly expressing their love by entering into a committed relationship that is recognized by the law.  Would such a marriage really be so wrong?  

After all, isn't the view that all men are created equal one of the cornerstones of our country's way of life?  Or is the real motive behind opposition to this seemingly victimless violation of the law to preserve the financial well being of the insurance industry?  I urge Ms. Biondi to withdraw her appeal and allow Mr. Huntsman and Mr. Jones and every other adult in Florida to enjoy their life, liberty and free pursuit of happiness.