In the wake of the Supreme Court’s decision in United States v. Windsor, state and federal courts are grappling with challenges to same-sex marriage bans. Most courts have held in favor of marriage equality, but not through the same legal reasoning. Some courts have applied heightened scrutiny, while others have applied a rational basis review, This Article discusses the split of authority in Florida and argues that the Florida Supreme Count should take up the issue.
The Author begins by discussing current equal protection jurisprudence and a specific Florida Supreme Court case, D.M.T. v. T.M.H., where the court applied rational basis review to an equal protection claim rooted in discrimination based on sexual orientation. The Author argues that this type of discrimination should be subject to intermediate scrutiny. The Article cites federal caselaw to illustrate that even courts applying rational basis review actually apply a heightened form of review and that several courts have found that sexual orientation is a protected class. The Article notes that the D.M.T. case failed to consider whether sexual orientation is a protected class; then it offers its own analysis of that issue, answering that question in the affirmative. The Author argues that state constitutions may not limit the freedoms and liberties that the federal constitution guarantees its citizens and that the modern version of the Florida Constitution prohibits discrimination on the basis of sexual orientation.
The Author concludes that the Florida Supreme Court should not avoid the issue, should find that sexual orientation is a protected class, and should subject laws targeting sexual orientation to intermediate scrutiny.