by Ann C. McGinley and Ellen Catsman Freidin
Ballot Summary: Defines “natural persons,” who are equal before the law and who have inalienable rights, as “female and male alike;” provides that no person shall be deprived of any rights because of national origin; changes “physical handicap” to “physical disability” as a reason that people are protected from
being deprived of any right.
The Declaration of Rights Committee recommended these changes and the CRC overwhelmingly agreed after studying and debating each separately on its own merits. The vote on “female and male alike” was 31-5.1 The vote on “national origin” was 28-0;2 on “physical disability,” the vote was----------- 29-1.3 The final vote on the entire Revision 9 was 28-7.4
Basic Rights: History and Interpretation
The basic rights provision begins with an affirmative grant of equality to all natural persons as well as an illustrative enumeration of inalienable rights. The term “natural” was interposed to clarify that this provision does not apply to corporations, but only to private persons.5
The last sentence of the basic rights provision currently states, “No person shall be deprived of any right because of race, religion or physical handicap.” The Florida Supreme Court has held unequivocally that this section protects individual rights from governmental intrusions, not from intrusions of private parties.6
Like the federal equal protection clause that requires strict scrutiny of governmental classifications based on race or national origin,7 this sentence in the Florida Constitution imposes a duty on the government to demonstrate that a classification based on race, religion, or physical handicap is narrowly tailored to further a compelling state interest.8 An amendment of this sentence, therefore, is an unambiguous vehicle for providing greater protection to individuals who are members of any newly enumerated group.
The CRC suggested amending this section to add “national origin.” As will be seen below, however, the CRC chose a different vehicle to recognize that Florida’s women and men are equal under the Florida Constitution.
Declaration of Rights Committee:
Process and Substance
The CRC conducted 12 public hearings around the state, and the Declaration of Rights Committee met 11 times for approximately 32 hours. Both took testimony on a wide variety of proposals—from legalizing marijuana for medical purposes to permitting conjugal visits in Florida prisons. All together, the committee considered 29 proposals, reporting out 12 proposals favorably. Only three of these proposals, which are now combined in Revision 9, were approved by the whole CRC.9
“Female and Male Alike”
As the Florida Supreme Court currently interprets the basic rights provision of Article I, §2, classifications based on race, religion, and physical handicap are subject to strict scrutiny10 whereas classifications based on sex appear to be subject to a lesser intermediate level scrutiny.11 To withstand a constitutional challenge, a gender-based12 classification must be substantially related to the achievement of important governmental objectives.13 Because the Florida Supreme Court has already interpreted the last sentence of Article I, §2 to require strict scrutiny of enumerated classifications made on the basis of race, religion, and physical handicap, adding “sex” to this section would almost certainly have raised the level of scrutiny applied to sex-based classifications to strict scrutiny.14 This change would put sex-based classifications on a par with race-based classifications.
The original proposal before the CRC was to add “sex” to the list of enumerated protected characteristics, but the CRC accepted an amendment to this proposal that defined “natural persons” as “female and male alike.” This change was adopted as a solution to concerns expressed by some commissioners that adding “sex” to the last sentence of the basic rights provision could lead a Florida court to legalize same sex marriage.15 Their concern was engendered by a decision from the Supreme Court of Hawaii requiring the application of strict scrutiny to the marriage statute which limited marriage to a heterosexual union. When the lower court applied strict scrutiny, it held that the Hawaii marriage statute was unconstitutional because it discriminated on the basis of sex.16
Because the intent was simply to secure equality for women in the Florida Constitution, the CRC accepted the amendment.17
In debating the proposal, Commissioner Gerald Kogan, the chief justice of the Florida Supreme Court, expressed these views:
We have heard from the women, but this is not solely a women’s issue. This is a statement that this Constitution Revision Commission can make. And the statement is that once and for all this state will go on record as saying that there is no question but that under the law of this state, men and women are equal. And I say this on behalf of the men who make up approximately half of the population of this state.
And for our spouses, our daughters, our friends that are women, there is no hidden agenda here. But the time has finally come for us to put at rest this issue once and for all. And by saying that men and women are equal under the law, then we have made that statement that the time has finally come for it. And I recommend to all of you to vote in favor of this proposal.18
Questions have arisen concerning the effect and interpretation of the “female and male alike” language in the basic rights provision. Because no other state constitution contains similar language, Florida cannot rely for interpretation solely on other state decisions. Thus, the commissioners’ intent in adopting this language and the overall purpose of the basic rights provision are particularly important in its interpretation.
The first question is whether “female and male alike” requires courts to apply strict scrutiny to sex-based classifications. This language has two possible interpretations: It could simply clarify that “all natural persons” includes males and females, or it could raise sex to a protected class subject to strict scrutiny.
Commissioners voiced both interpretations in debate. In fact, one commissioner refused to support the amendment because it either did nothing or did too much. Other commissioners assumed that adding “female and male alike” would subject gender-based classifications to strict scrutiny. This reading is more consistent with the intent of the CRC.
Although the change would not necessarily enhance existing statutory protections of Florida’s women,19 proponents emphasized that the time had come for the Florida Constitution to recognize that women are equal to men. As Commissioner Ellen Freidin stated:
If women had always been allowed to vote, had always been allowed to make decisions for themselves, had always been allowed to own property, that would be unnecessary. But under the circumstances where women have not had equal opportunities to employment, women have not been able to have equal pay, women initially were considered property of their husbands or their families, we have got a long history of oppression of women. And it’s time that there be an explicit recognition that women are equal to men.20
* * *
It is inexcusable that our Constitution in 1998 does not mention women. It is inexcusable that other classes of people are mentioned in our Constitution with specific protection and that women, more than 50 percent of our population, are not mentioned.21
This interpretation is consistent with the general purpose of the basic rights provision and its history. In a statement before the commission, Professor Patrick O. Gudridge of the University of Miami School of Law emphasized that the addition of “female and male alike” would grant women greater protection than they currently have under the Florida Constitution:
Is “women and men alike” redundant language given the existing constitutional declaration that “[a]ll natural persons are equal before the law”? In answering this question, it is important to note that in 1968 there was relatively little constitutional case law considering the question of whether constitutional equality obligations limited legislative or administrative differences in treatment of men and women. Strictly speaking, therefore, it is not easy to read the 1968 language, in its original context, as dealing directly with “women and men alike.” Article I, section 2, as it now stands, marks discrimination on the basis of religion, race and physical handicap as constitutionally suspect. No reference whatsoever to “women and men alike” may therefore carry (for some readers) a negative implication—that differences in treatment of this sort are not constitutionally controversial.22
Because of the unique history of this provision, its proponents’ clear statements of intent, and the experience in the vast majority of other jurisdictions upholding traditional marriage statutes, the claim that this provision will create some new entitlement to same-sex marriage is unfounded.
Florida law requires courts interpreting a constitutional provision to consider the people’s will in adopting the provision.23 In so doing, the courts will consider historical precedent, present facts, and common sense.24 Florida courts will also consider explanatory statements or materials available to the public at the time of the adoption of the constitutional provision.25 Here, the main proponents of equality for women, in debate and in written submissions for the record of the CRC, have made clear and unambiguous statements of intent. For example, Commissioner Freidin stated:
As a sponsor of that proposal, I state unequivocally that in offering this proposal I do not intend and have never intended for it to form the basis for a right to same-sex marriage in this state. Furthermore, I am satisfied that adoption of this proposal by the voters would not confer such a right.26
An examination of the expressed intentions of the proponents of this proposal makes clear that the commissioners’ intent in offering the “female and male alike” language is limited to granting additional constitutional protection to women in Florida. This expressed intent is consistent with the overall purpose of the basic rights provision which is to grant rights to persons identified in the provision.
Furthermore, because no other state constitution or law includes the language “female and male alike” to define “natural persons,” the proposed language has never been interpreted to confer a right to same-sex marriage.
Most importantly, although over 20 states or territories have equal rights amendments,27 only the Hawaii court has held that an equal rights provision, which bears no resemblance to the proposed provision here, permits same-sex marriage.28 The Hawaii decision is an aberration.29 Courts in seven states with equal rights amendments and/or statutes prohibiting discrimination “because of sex” have consistently held that these provisions did not limit a state’s freedom to forbid same-sex marriage.30
One of the most recent cases addressing the constitutionality of a marriage statute is Baker v. Vermont, slip op. (Vt. Super., December, 19, 1997) (also available at http://www.fitzhugh.com/samesex.htm). In Baker, the superior court upheld the Vermont marriage statute, concluding that the marriage statute does not violate a fundamental right and does not discriminate on the basis of gender.
The court stated:
[S]ame-sex unions simply fall outside the definition of marriage, which is premised on uniting one member of each sex. As a result an individual’s gender is irrelevant to the application of the marriage statutes.
* * *
Vermont’s laws do not treat similarly situated males and females in a different manner; the statutes apply even-handedly to both sexes. No benefit is conferred nor burden imposed upon one sex and not the other. Requiring a member of each sex to create a marriage does not favor one sex over the other, and does not constitute invidious discrimination based on gender.
There is no reason to believe that under these circumstances the proposed language would create any new right to same sex marriage in Florida.
Revision 9 also adds “national origin” as a protected characteristic in the last sentence of Art. I, §2. If this proposal passes, the Florida Constitution will explicitly require that strict scrutiny be applied to governmental classifications based on a person’s national origin.31 “National origin” includes not only the place of birth, but also a person’s ancestry and ethnicity.32 Commissioner Planas, the sponsor of the proposal, explained that this provision is particularly necessary in Florida because of the state’s large number of immigrants and the continued existence in Florida of discrimination based on national origin.33 This proposal was adopted unanimously by the commission,34 and received virtually no opposition.
This new constitutional provision is intended to make clear to the Florida courts, to persons living in Florida, and to those contemplating emigrating to Florida that Florida law will protect the interests of all persons and will not permit any deprivation of rights because of a person’s national origin, ancestry, or ethnicity. This provision is not, however, intended to protect illegal immigrants from federal immigration laws.35
Revision 9 also changes “physical handicap” to “physical disability.” The intent of this provision is twofold. First, it updates the term “handicap,” which is regarded by many as derogatory, replacing it with the currently acceptable term: “disability.”36
Second, by changing the term to “disability,” this proposal, although not requiring Florida courts to follow federal law, offers a body of federal law that Florida courts can access when defining “disability.”37
Revision 9 provides Florida voters the opportunity to make modest but meaningful changes to one of the most valued sections of our state’s fundamental document. The Constitution Revision Commission did not arrive at these recommendations lightly; rather, they came about only after rigorous and lengthy debate. The overwhelming bipartisan support of the commission and the early favorable polling results38 indicate that Revision 9 represents what Floridians want their constitution to express. q
1 See CRC, March 17, 1998, p. 213.
2 See CRC, February 25, 1998, p. 202.
4 See CRC, March 23, 1998, p. 243.
5 Talbot D’Alemberte, The Florida State Constitution: A Reference Guide (1991); see Transcript, CRC Debates, March 17, 1998, p. 76–77.
6 See Schreiner v. McKenzie Tank Lines, Inc., 432 So. 2d 567 (Fla. 1983).
7 See, e.g., Carey v. Population Servs. Int’l, 431 U.S. 678 (1977).
8 See, e.g., Abshire v. State, 642 So. 2d 542 (Fla. 1994).
9 Other proposals which were rejected included: protections on the basis of sexual orientation and age, several proposals dealing with abortion rights, civil forfeitures, computer privacy, equal opportunity, religious practices, and parental rights.
10 See Abshire v. State, 642 So. 2d 542 (Fla. 1994).
11 Although there is no case law under Art. I, §2 describing the scrutiny applied to gender classifications, Art. I, §2 follows the federal interpretation of the Equal Protection Clause. See Sasso v. Ram Property Mgt, 431 So. 2d 204 (1st D.C.A. Fla. 1983). Florida courts would, therefore, presumably use intermediate scrutiny to evaluate sex-based classifications under the Florida Constitution.
12 We use the terms “sex” and “gender” interchangeably because the courts use the terms interchangeably.
13 See United States v. Virginia, 518 U.S. 515 (1996).
14 Most jurisdictions that have added “sex” as a protected characteristic require a strict scrutiny review of a gender-based classification. See, e.g., People v. Salinas, 191 Colo. 171, 551 P.2d 703 (1976). Only Rhode Island has continued to follow the federal courts’ intermediate scrutiny. See Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 734 (R.I. 1992).
15 See Transcript, Commission Debates, January 15, 1998, pp. 78–81.
16 See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that equal rights provision prohibiting discrimination “because of sex” in Hawaiian constitution required the court to apply the strict scrutiny test to marital statute prohibiting same-sex marriage); Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. 1996) (finding, upon remand, that the state had not met its burden of proving that the marital statute was the least restrictive means of furthering a compelling governmental interest.).
17 See Transcript, CRC Debates, January 15, 1998 and discussion by Commissioner Connor, pp. 86–91. Commissioner Connor ultimately did not support the amendment. See Transcript of Commission Debates, March 17, 1998, pp. 78–79.
18 See Transcript, Commission Debates, March 17, 1998, p. 73.
19 Currently, Florida’s women are protected from discrimination by the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution, the federal civil rights acts, and various state statutes including: Fla. Stat. §§27.182, 27.5302, 28.34 (prohibiting salary discrimination in public employment); §112.042 (prohibiting discrimination in county and municipal employment); §110.233 (political activity); §112.66 (retirement plans); §175.333 (firefighters’ pension funds); §185.341 (police pension funds); §240.335 (community college personnel); §§420.516, 420.526 (financing of housing); §448.07 (equal pay); §§760.01–760.11 and 509.092 (civil rights act).
There are also at least 17 Florida statutes dealing with bidding procedures and special contracts to be granted to businesses owned by women, minorities, and members of other disadvantaged groups. (MBE/WBE). Typical of these statutes are: Fla. Stat. §235.31 (1997) (10 percent set aside for building of educational facilities for female and minority owned businesses); Fla. Stat. §§255.101–102 (1997) (public construction); Fla. Stats. §§287.02, 287.042, 287.057 (procurement of goods and services). Fla. Admin. Code tit. 14, ch. 14, §78.002(18)(a) grants opportunities to “disadvantaged business enterprises” (DBEs), permitting them to participate in government-funded construction projects.
20 See Transcript, Commission Debates, January 15, 1998, pp. 81–82.
21 See Transcript, Commission Debates, March 17, 1998, p. 69.
22 This statement was originally made by Professor Gudridge at public hearings in Ft. Lauderdale and St. Petersburg, Florida, and was subsequently published in the Journal at the direction of Dexter Douglass, chair of the Constitution Revision Commission, CRC, March 17, 1998, p. 213.
In Minor v. Happersett, 88 U.S. 162 (1874), the Court held that although women were “citizens,” the Fourteenth Amendment did not grant women the right to vote because they had no right to vote before the passage of the Fourteenth Amendment, which did not specifically deal with women’s suffrage; nor did the Fifteenth Amendment which prohibited denial of right to vote to citizens on account of race or previous condition of servitude.
23 See Plante v. Smathers, 372 So. 2d 933 (1979).
24 Plante, 372 So. 2d at 936.
25 In re Advisory Opinion to the Governor, 343 So. 2d 17, 21–23 (Fla. 1977).
26 Commissioner Freidin’s Statement of Intent with Regards to Proposal 11, CRC, March 17, 1998, p. 213. Similarly, the following Statement of Intent was included in the Journal on January 15, 1998:
“Mr. Chairman, we ask that the following remarks be placed in the Journal of the Constitution Revision Commission to help clarify the intent of Proposal 11 as it was finally adopted by the Commission. The intent of Proposal 11, as adopted, was to affirm explicitly that all natural persons, female and male alike, are equal before the law. The proposal as adopted is not intended, and should not be construed, to confer any right to same-sex marriages in this state. Many in the body were concerned that the proposal as it was originally proposed, if adopted by the people, would have opened the door to same-sex marriages in Florida. That was not an acceptable result to many members of the Commission. Consequently, the purpose of amending the original proposal and adopting it in its amended form was to assure that the proposal would not be deemed in any way to countenance same-sex marriages.
Signed: Pat Barton, Chris Corr, Paul Hawkes, Frank Morsani, J. Stanley Marshall, Judith Byrne Riley, Barbara Williams Ford-Coates, Kenneth L. Connor, Marilyn Evans-Jones, Jacinta M. Mathis, James Harold Thompson, H.T. Smith, Clay Henderson.”
27 Alaska, California (applicable to commercial rights only), Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Puerto Rico, Rhode Island, Texas, Utah, Virginia, Washington, and Wyoming.
28 See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that equal rights provision prohibiting discrimination “because of sex” in Hawaiian constitution required the court to apply the strict scrutiny test to marital statute prohibiting same-sex marriage); Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. 1996) (finding, upon remand, that the state had not met its burden of proving that marital statute was the least restrictive means of furthering a compelling governmental interest.).
29 There is only one other reported decision allowing same sex marriage. In Brause v. Alaska, an Alaska trial judge concluded on the basis of the state’s privacy clause that the right to choose one’s life partner is a fundamental right, see Brause v. Alaska, slip op. (Alaska Super. February 27, 1988) (also available at http://www.ftm.org/archive/brause_v_alaska.html). Thus, the state would have to demonstrate a compelling interest in refusing to permit persons of the same sex from participating in marriage.
Because Brause is decided under the Alaska constitution’s right to privacy, it would not provide precedent for a Florida challenge under the proposed amendment. Professor Gudridge has further concluded that Florida’s right to privacy would not grant a right to same sex marriage: “The Alaska superior court decision rests on a reading of an Alaska constitutional right to privacy. This opinion therefore is irrelevant to the question of the meaning of ‘women and men alike.’ Moreover, the interpretation of privacy rights in this case is flatly inconsistent with Florida law—which holds that public acts (presumably including marriage) do not give rise to a reasonable expectation of privacy.” Statement of Patrick O. Gudridge, University of Miami School of Law, CRC, March 17, 1998, p. 213.
30 See, e.g., Storrs v. Holcomb, 645 N.Y.S.2d 286 (Sup. Ct. 1996) (holding that two gay males did not have a right under the federal equal protection clause or under New York law to marry); Dean v. District of Columbia, 653 A.2d 307 (D.C. Ct. App. 1995) (District’s Human Rights Act that specifically protects against discrimination based on sexual orientation not violated by marital statute excluding same sex marriage.); Gajovski v. Gajovski, 81 Ohio App. 3d 11, 610 N.E. 2d 431 (Summit Co.), dismissed 62 Ohio St. 3d 1415, 577 N.E. 2d 660 (1991) (valid marriage can exist only between both sexes); M.T. v. J.T., 140 N.J. Super, 77, 355 A.2d 204, 208 (App. Div. 1976) (“requirement that marriage must be between a man and a woman . . . is so strongly and firmly implied from a full reading of the statutes that a different legislative intent, one which would sanction a marriage between persons of the same sex, cannot be fathomed”); Singer v. Hara, 11 Wash. App. 247 (1974) (state ERA stating “Equality of rights and responsibility under the law shall not be denied or abridged on account of sex” did not grant right to same-sex marriage); Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973) (same-sex couple incapable of entering into marriage as the term is defined); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810 (1972) (Minnesota marriage statute interpreted by court to limit marriage to heterosexual relationship constitutional under Minnesota and federal constitutions). For more discussion and cases on same sex marriage, see Phillip E. Hassman, Construction and Application of State Equal Rights Amendments Forbidding Determination of Rights Based on Sex, 90 A.L.R.3d 158 (1980); Peter G. Guthrie, Annotation, Marriage Between Persons of the Same Sex, 63 A.L.R.3d 1199 (1975).
Related cases have held that marriage is a special institution between a man and a woman whose benefits do not extend to same sex couples. See, e.g., Rutgers Council of AAUP v. Rutgers, 689 A.2d 828 (N.J. Super. 1997) (same sex partners do not have right to health insurance benefits); Lilly v. City of Minneapolis, 1994 WL 315620 (Minn.Dist.Ct. 1994) (council ordinance granting benefits to domestic partners in violation of Minnesota law); Gajovski v. Gajovski, 81 Ohio App. 3d 11, 610 N.E.2d 431 (Summit Co.), dismissed 62 Ohio St. 3d 1415, 577 N.E.2d 660 (1991) (valid marriage can only exist between opposite sexes); Adams v. Howerton, 673 F. 2d 1036, cert. denied, 102 S. Ct. 3494 (9th Cir. 1982) (federal immigration law defining marriage as heterosexual constitutional).
31 The Florida Supreme Court has recognized in dicta that under Article I, §2 strict scrutiny is appropriate for classifications based on ethnicity and skin color. See Abshire v. Florida, 642 So. 2d 542 (Fla. 1994).
32 Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Fla. Stat. §§760.10, 760.23, 760.60, 112.66, 175.333, 185.341, 240.364, 420.516, and 641.406 already prohibit discrimination based on national origin. Fla. Stat. §760.02(5) specifically defines “national origin” to include ancestry for purposes of the Florida Civil Rights Act.
Moreover, the Florida Supreme Court has held it unconstitutional under Art. I, §2 to exclude jurors solely on the basis of their ethnicity. See State v. Alen, 616 So. 2d. 452, 454 (Fla. 1993).
33 See Transcript, Commission Debates, January 12, 1998, pp. 43–47.
34 See CRC, February 25, 1998 (28 yeas, 0 nays), p. 202.
35 See Transcript, Commission Debates, February 25, 1998, pp. 133–34.
36 See Transcript, Commission Debates, January 12, 1998, pp. 76–86.
37 See id.
38 The CRC’s poll released July 28, 1998, conducted by Public Opinion Strategies and Frederick Schneider Research, indicated an 81 percent favorable vote on Revision 9. A Mason Dixon poll, released July 25, 1998, indicated that 78 percent would vote “yes” on the revision.
Ellen Catsman Freidin is a member of the 1997-98 Constitution Revision Commission and its Declaration of Rights Committee and of counsel to Akerman, Senterfitt & Eidson, P.A. in Miami.
Ann C. McGinley is a special consultant to the Declaration of Rights Committee of the Florida Constitution Revision Commission and associate professor of law, Florida State University College of Law. She thanks Mary McCormick at the Florida State University College of Law Library for her excellent research support.