The document provides an outline and discussion of the legal history and status of same-sex marriage in the United States and Florida. It discusses key court cases that have framed the issue and the evolution of recognizing marriage equality across states from 2010 to 2015. It also outlines potential impacts if an upcoming Supreme Court case upholds bans on same-sex marriage, such as same-sex couples in affected states losing marital rights and benefits.

1. PostTenebras: Lux?
The Evolution, Recognition, and Application of
Marriage Equality
Christopher W. Rumbold, Esq.
Law Offices of Christopher W. Rumbold, LLC
Theodore Uno, Esq.
Boies, Schiller & Flexner LLP

2. Outline
 Legal history and status of same-sex marriage in the U.S.
 Legal history and status of same-sex marriage in Florida
 Practical concerns of representing same-sex couples before and
after marriage equality
 Emerging legal issues
2

3. Florida’s Ban vs. Constitutional Principles
Florida
 Fla. Stat. § 741.212
 Art. I, Sec. II, Fla. Con.
U.S. Constitutional Principles
 “The history of our Constitution…is the story of the
extension of constitutional rights and protections to
people once ignored or excluded.” U.S. v. Virginia.
 “Our Constitution…neither knows nor tolerates classes
among citizens.” Plessy v. Ferguson.
 “There is no asterisk next to the Fourteenth
Amendment that excludes gay persons from its
protections.” Wolf v. Walker.
 “The inquiry is not whether there is a right to same-
sex marriage, but whether same-sex couples can be
excluded from the right to marriage.” Pareto, (citing
Wolf v. Walker).
3

4. 4

5. Framing the Issue
 Bowers v. Hardwick, 478 U.S. 186 (1986) – Whether the Federal Constitution confers a
fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the
many States that still make such conduct illegal and have done so for a very long time.
 Lawrence v. Texas, 539 U.S. 558 (2003) – The question before the Court is the validity of a Texas
statute making it a crime for two persons of the same sex to engage in certain intimate sexual
conduct.
 U.S. v. Windsor, 133 S. Ct. 2675 (2013) – Whether Section 3 of the Defense of Marriage Act
violates the right to equal protection of same-sex couples who are legally married under state
law. (M 50-94).
 Deboer v. Snyder, No.14-571 – Does the Fourteenth Amendment require a state to license a
marriage between two people of the same sex? (M 2-48). Obergefell v. Hodges, No.14-556 –
Does the Fourteenth Amendment require a state to recognize a marriage between two people
of the same-sex when their marriage was lawfully licensed and performed out of state? (M 176-
219, 221-266.) (Oral Argument before U.S. Supreme Court scheduled 4/28/2015)
5

6. Marital Equality– International 2015
6

7. Marital Equality U.S. – February 2015
7

8. 8

9. State Initiatives to Roll-Back LGBT Rights
9
(M 169-174)

10. Florida House Bill 583 (2015)
HB 583 – Single Sex Public Facilities
GENERAL BILL by Artiles
An act relating to single sex public facilities; providing purpose and legislative findings;
creating s. 760.55, providing definitions, requiring that use of single sex public facilities
be restricted to persons of the sex for which the facility is designated; prohibiting
knowingly and willfully entering a single-sex public facility designated for or restricted to
persons of the other biological sex; providing criminal penalties; providing exemptions;
providing private causes of action against violators; providing for preemption; providing
an effective date.
Effective Date: 7/1/2015
Last Action: March 4, 2015, passed out of Civil Justice Subcommittee 9 to 4.
(M 406-410).
10

11. Florida House Bill 7111 (2015)
CS/HB 7111: Conscience Protection for Actions of Private Child-Placing Agencies
GENERAL BILL by Judiciary Committee ; Health and Human Services Committee ;
Brodeur ; (CO-INTRODUCERS) Ahern ; Albritton ; Baxley ; Broxson ; Drake ; Porter
Conscience Protection for Actions of Private Child-Placing Agencies; Prohibits
specified actions from being taken against private child-placing agency that
refuses to place child or be involved in placement of child or facilitate licensure of
foster home which would violate agency's written religious or moral convictions
or policies; provides that such refusal does not provide basis for claim for
injunctive relief or compensatory or punitive damages.
Effective Date: 7/1/2015
Last Action: 4/21/2015 Senate - Received -SJ 454
11

12. Timeline – Federal Appellate Courts
 U.S. Supreme Court
 U.S. v. Windsor, 133 S. Ct. 2675 (2013).
 October 6, 2014 - review denied in 4th, 7th and 10th Circuit cases, which
held that same-sex marriage bans were unconstitutional.
 January 16, 2015 - review granted in 6th Circuit cases, which upheld same-
sex marriage bans; argument is scheduled April 28, 2015.
 Federal Appellate Courts
 Kitchen v. Herbert, 755 F. 3d 1193 (10th Cir. 2014).
 Bostic v. Schafer, 760 F. 3d 352 (4th Cir. 2014).
 Baskin v. Bogan, 766 F. 3d 648 (7th Cir. 2014).
 Latta v. Otter, 771 F. 3d 456 (9th Cir. 2014).
 DeBoer v. Snyder, 772 F. 3d 388 (6th Cir. 2014).
12

13. Timeline – Hawai’i & Federal/State Impact
Hawai’i
 1993 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
 1996 Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235 (Haw. Cir.
Ct. Dec. 3, 1996).
 1998 Hawai’i Constitution Amended
 Section 23. The legislature shall have the power to reserve
marriage to opposite-sex couples. [Add HB 117 (1997) and election
Nov. 3, 1998]
 1999 Baehr v.Miike, 994 P.2d 566 (Haw. 1999).
13

14. Timeline – Hawai’i & Federal/State Impact
State Impact
 Wide-spread statutory or constitutional amendments excluding same-
sex couples from the institution of marriage.
Federal Impact
 Defense of Marriage Act enacted and signed into law in 1996.
DOMA – Section 2: “No State . . . shall be required to [give legal] effect
to . . . any persons of the same sex that is treated as marriage under the
laws of such other State. . . . ”
DOMA – Section 3: In Legislative Acts or Administrative/Agency rulings,
marriage means “one man and one woman” and spouse means “a
person of the opposite sex which is a husband or a wife.”
14

15. Timeline - States as of 2010
Marriage Equality
 Massachusetts
 Connecticut
 Iowa
 Vermont
 Maine
 New Hampshire
15

16. Timeline – States as of 2013
Marriage Equality
 Massachusetts, Connecticut, Iowa, Vermont, Maine, New
Hampshire, Washington, DC*, New York, Maryland, Maine,
Washington, Delaware, California, Rhode Island, Minnesota.
Civil Unions/Domestic Partnership
 Hawaii (CU), Illinois (CU), New Jersey (CU), Colorado (DP),
Nevada (DP), Oregon (DP), Wisconsin (DP).
Bold = enacted by legislature or referendum after district court
opinion in Perry
16

17. 17

18. Marital Equality in Florida
 On January 6, 2015, at 12:01 a.m., marital rights – as to
celebration and recognition – and marital equality were
extended to Florida’s same-sex couples. More than 1,500
marriage licenses were issued and hundreds married in mass
ceremonies were held in Palm Beach, Broward, Miami-Dade
and Monroe Counties. (M 325-334, 336-341, 302-305).
 January 5, 2015 at 11:59 p.m. – Expiration of stay in Brenner
(Brenner et al. v. Scott, No.: 4:14cv 107-RH/CAS (N.D. Fla. Aug.
21, 2014) after both the Eleventh Circuit Court of Appeals and
the U.S. Supreme Court declined the State of Florida’s invitation
to extend the stay issued by Judge Hinkle. (M 268-300).
18

19. Timeline - Florida
 Fla. Stat. § 741.212, (1997) Florida’s Defense of Marriage Act
enacted, mirrors Federal DOMA.
 Lowe v. Broward County, 766 So.2d 1199 (Fla. 4th DCA
2000). Upheld Broward County Domestic Partnership Act.
 Wilson v. Ake, 354 F. Supp.2d 1298 (M.D. Fla. 2005). Upheld
Florida’s Marriage Ban.
 Article I, Section 27, Florida Constitution approved by 62% vote
(2008). (Defines marriage as union between one man and one
woman.)
19

20. Timeline - Florida
 Shaw v. Shaw, in May 2014, Judge Laurel Lee (13th Judicial Circuit) dismissed
divorce petition based on Florida’s marriage ban.
 Pareto v. Ruvin, 21 Fla. L. Weekly Supp. 899a (Fla. 11th Cir. Cr. July 25, 2014);
Huntsman v. Heavilin, 21 Fla. L. Weekly Supp. 916a (Fla. 16th Cir. Ct. July 17,
2014). Judge Sarah Zabel and Judge Luis Garcia struck down Florida’s
marriage ban.
 In re Estate of Bangor, No. 502014CP001857XXXXMB (Fla. 15th Cir. Ct. Aug.
5, 2014). Judge Diana Lewis held Florida’s marriage ban unconstitutional “as
applied.” Attorney General Bondi did not appeal.
 In re Marriage of Heather Brassner, 21 Fla. L. Weekly Supp. 920a (Fla. 17th
Cir. Ct. Dec. 18, 2014). Judge Dale Cohen held Florida’s marriage ban was
“unconstitutional, void and unenforceable.” Attorney General Bondi did not
appeal. (M 307-323).
20

21. Timeline – Florida (AAML & FLS)
 February 1, 2014 – Family Law Section’s (“FLS”) Executive
Council approves standing position: “The Family Law Section
supports marriage and family equality with all applicable rights
and responsibilities, regardless of sex, gender, or sexual
orientation.”
 In September 2014, the FLS and AAML, FC filed amicus brief in
support of marital recognition for valid same-sex marriages
from foreign jurisdictions in Shaw. (M 343-374).
 December 2014, AAML, FC filed amicus brief in support of
marital equality in Pareto/Huntsman. (M 376-400).
21

22. Pending Florida Appeals
 Shaw v. Shaw, No. 2D14-2384 (Fla. 2d DCA 2014).
 Florida v. Pareto, No. 3D14-1816 & Florida v. Huntsman, No.
3D14-1783(Fla. 3d DCA 2014)(consolidated appeals).
 Brandon-Thomas v. Brandon-Thomas, No. 2D14-761 (Fla. 2d
DCA 2014). Filed on June 16, 2014, by Luis E. Insignares.
Opinion filed on April 24, 2015.
 Brenner et al. v. Scott, No.: 4:14cv 107-RH/CAS (N.D. Fla. Aug.
21, 2014).
22

23. Impact – Population Demographics
 Nationally, approximately 8,000,000 Americans identify as LGBT.
 Nationally, 646,464 same-sex households; in Florida 48,496.
 Nationally, 220,000 children reared in same-sex households.
13.31% of same-sex couples are raising at least one child.
 Nationally, same-sex couples are 4X more likely to adopt and 6X
more likely to foster than opposite-sex couples. Same-sex
couples are more likely to adopt children of color and children
with special needs than opposite-sex couples.
23

24. 24

25. What If DeBoer Is Upheld?
Number of states with marriage equality based on court
decisions after Windsor = 17
What happens to marriage equality in those states?
What happens to the same-sex couples that have already
been married in those states?
25

26. What If DeBoer Is Upheld?
Is California an Example?
 May 2008 – California Supreme Court holds that statutory same-sex marriage
ban violated the California constitution in In re Marriage Cases.
 November 5, 2008 – Proposition 8, which inserted same-sex marriage ban into
California constitution, passes.
 May 22, 2009 – Perry v. Schwarzenegger complaint filed, which challenged
Proposition 8 as violating the U.S. constitution.
 May 26, 2009 – California Supreme Court holds that Proposition 8 was lawfully
enacted but that same-sex marriages prior to passage (approximately 18,000)
remained valid in Strauss v. Horton.
 Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (N.D. Cal. 2010) (M 96-167) /
Hollingsworth v. Perry, 133 S. Ct. 2652 (2012).
26

27. Marriage
 Consideration:
Ashby v. Ashby, 651 So.2d 246 (Fla. 4th DCA 1995).
 Parental Rights:
Fla. Stat. §§ 61.13, 61.13001, 61.13002, 61.13003.
 Assets:
Fla. Stat. §§ 61.075, 61.076, 61.077.
 Support:
Fla. Stat. §§ 61.071, 61.08, 61.09, 61.10, 61.14.
 Attorney’s Fees:
Fla. Stat. §§ 61.16, 61.071.
 Termination:
Fla. Stat. §§ 61.011, 61.021, 61.031, 61.043, 61.052.
Partnership
 Consideration:
Stevens v. Muse, 562 So.2d
852 (Fla. 4th DCA 1990).
 Parental Rights
 Assets
 Support
 Attorney’s Fees
 Termination
No default Marital Law rights,
some default contractual rights.
What If DeBoer Is Upheld?
27

28. What If DeBoer Is Upheld?
 Posik v. Layton, 695 So.2d 759 (Fla. 5th DCA 1997) (life partner
agreement for support enforceable).
 Dietrich v. Winters, 798 So.2d 864 (Fla. 4th DCA 2001)
(agreements between life partners related to real estate
enforcable and equitable as well as legal remedies are
available).
 Forrest v. Ron, 821 So.2d 1163 (Fla. 3d DCA 2002) (agreement
to provide “bridge-the-gap” money to attempt reconciliation
after filing of paternity action enforceable).
28

29. What If DeBoer Is Upheld?
 Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006)
(agreement to give non-biological, non-birth parent parental
rights unenforceable).
 DMT v. TMH, 129 So.3d 320 (Fla. 2013) (biological mother who
provided egg to birth mother, who had same-sex relationship
with birth mother, and who had established parental
relationship with child entitled to parental rights).
29

30. What If DeBoer Is Upheld?
Adult Adoption as an Estate Planning Tool
 Fla. Stat. § 63.042(1) provides that any person, a minor or an adult,
may be adopted.
 Florida sanctions the adoption of an adult even if the impetus behind
the adoption is a benefit that the adopted adult would not have
otherwise received. See In re Adoption of Holland, 965 So.2d 1213
(Fla. 5th DCA 2007).
 Fla. Stat. §732.108 (2012): “For the purpose of intestate succession
by or from an adopted person, the adopted person is a descendant of
the adopting parent and is one of the natural kindred of all members
of the adopting parent’s family, and is not a descendant of his or her
natural parents, nor is he or she one of the kindred of any member of
the natural parent’s family or any prior adoptive parent’s family. . . .”
30

31. What If DeBoer Is Upheld?
SB 854: Domestic Partners
GENERAL BILL by Sobel
Domestic Partners; Requiring the clerk of the circuit court to collect a filing fee for
domestic partner registrations; providing for the deposit of moneys generated from
the fee charged for a Declaration of Domestic Partnership into the Displaced
Homemaker Trust Fund; establishing requirements for domestic partnership;
identifying rights afforded to domestic partners; providing that the act does not
preempt the authority of a county or municipality to enact a domestic partnership
ordinance that does not conflict with the act, etc.
Effective Date: 7/1/2015
Last Action: 2/20/2015 Senate - Referred to Judiciary; Community Affairs;
Appropriations
31

32. What If DeBoer Is Overturned?
Federal Rights Dependent Upon Marital Status
At Least 1,138 Federal Laws (See list of federal laws contained in the attached
1997 GAO Report and 2004 GAO Update.)
1. Social security benefits
2. Veterans’ benefits
3. Taxation
4. Federal civilian and military service benefits
5. Employment benefits and related laws
6. Immigration, naturalization, and aliens
7. Native Americans
8. Trade, commerce, and intellectual property
9. Financial disclosure and conflict of interest
10. Crimes and family violence
11. Loans, guarantees, and payments in agriculture
12. Federal natural resources and related laws
13. Miscellaneous laws
32

33. What If DeBoer Is Overturned?
State Rights Dependent on Marital Status
***Over 500 Florida State Statutes are dependent on marital status.
1. Florida DOMA
2. Business - commercial discrimination, corporations, Florida’s UCC, etc.
3. Campaigns and Public Officials Financial Disclosure and Conflict of Interest
4. Crimes, Torts, and Family Violence
5. Divorce and Marriage
6. Employment and Benefits – FRS, workers comp., unemployment, pension (public), etc.
7. Guardianship – priority status for guardian, etc.
8. Health Issues - health decision-making, substance abuse services, nursing home facilities, etc.
9. Insurance - Automatic (partial) beneficiary (qualified) of each other’s assets.
10. Parental Rights and Adoption
11. Procedure and Evidentiary Rules – joinder, process, communication privileges, etc.
12. Property – equitable distribution assumption, death rights, etc.
13. Social and Economic Assistance – Medicaid, Family self-sufficiency, Social Security, etc.
14. State Civilian and Military Service Benefits
15. Taxation, Stock, and Investments
16. Trusts and Estates - intestate succession, wills, and property exemptions and allowances.
33

34. 34

35. Equality! But How?
IRS Rul. 2013-17
 Revenue Ruling 58-66, 1958-1
 Gender neutral terms in the code include (1) Spouse: individuals
married to persons of same-sex if lawfully married under state law
and (2) Marriage: spouses of same-sex.
 “Husband and wife,” “husband” and “wife” – included in definitions 1
and 2 above. See Pedersen v. Office of Personnel Mgmt., 881 F.
Supp.2d 294, 306-07 (D. Conn. 2012).
 Endorses place of celebration as opposed to place of domicile
 See Sections 6511, 2523, 2056, 2010, 2518
35

36.  Earned Income Tax Credit
See 26 USC §32: The definition of qualifying child under this provision
includes only a child who is the taxpayer’s (a) biological child or descendent;
(b) stepchild of the taxpayer; or (c) adopted child.
 Head of Household Status
See 26 USC §2: The “limitations” section of this provision explicitly denies
the benefit of head-of-household status to taxpayers supporting non-
biological, non-adopted children.
 Child Tax Credit
See USC §32(c)(3)(B): This provision limits the child tax credit to children
who meet the relationship test set forth in the earned income tax provisions.
Example: Post-IRS Rule 2013-17
36

37. Example: Post-IRS Rule 2013-17
 Family #1: Married husband and wife, both are biological parents of the
child.
 Eligible for Surviving Child Benefits
 Eligible for Surviving Parent Benefits
 Family #2: Same-sex couple, deceased worker was the biological parent or
adoptive of the child.
 Eligible for Surviving Child Benefits
 Not Eligible for Surviving Parent Benefits
 Family #3: Same-sex couple, deceased worker was not the biological parent
nor able to adopt child through second-parent adoption.
 Not Eligible for Surviving Child Benefits
 Not Eligible for Surviving Parent Benefits
37

38. Marriage Equality! But How?
 In Florida, how do we achieve what the IRS
ruling effectuated at the federal level?
 Florida Senate Bill 1428 (2015) (M 402-404).
 Other than revising the Statutes to Gender
Neutral, are there other potential revisions that
will need to be made? If so, what?
38

39. Marriage Equality! But How?
How have other states statutorily addressed the
implementation of marriage equality?
 New Hampshire RSA 21:3 creates a statutory construction rule that makes
definitions of terms “gender-neutral for all purposes throughout New Hampshire
law, whether in statute, state administrative court rule, policy, common law, or
any other source of civil state law.”
 California SB 1306 amended, section by section, the California Code to make
many provisions gender neutral.
39

40. Equality! What Now?
Adoption
 Fla. Stat. §63.042(3) - No person eligible to adopt under this statute may adopt if that
person is a homosexual. (Florida House Bill 7013, Lines 183-184).
 Cox v. Fla. Dept. of Health and Rehab. Servs., 656 So.2d 902 (Fla. 1995) – Voluntary
dismissal after Supreme Court approved in part, quashed in part and remanded for further
proceedings to perfect record regarding challenge under Art. 1, Sec. 2, Fla. Con. In re:
Matter of Adoption of X.X.G. and N.R.G., 45 So.3d 79 (Fla. 3d DCA 2010) – Trial court ruling
that §63.042(3) is not rationally related to any legitimate state interest and is there
unconstitutionally impermissible – affirmed on appeal.
 Fla. Stat. §63.042(1)(a) (a) - Who may be adopted; who may adopt: A husband and wife
jointly.
 Second Parent Adoption.
40

41. Equality! What Now?
Marital Presumption
 Fla. Stat. §382.013(2)(a) – If the Mother is married at the time of the birth,
the name of the Husband shall be entered on the birth certificate as the
father of the child, unless paternity has been determined otherwise by a
court of competent jurisdiction.
 Is the marital presumption automatic upon marital recognition?
 In Florida?
 For a child born to validly married same-sex parents in a foreign
jurisdiction now residing Florida?
 Should a marital presumption exist in same-sex unions?
 Establishment of Parentage – Voluntary Acknowledgements of Parentage.
41

42. Practice Scenario One
 Same-sex couple meet in Florida in 1995 and reside in a county
that does not recognize domestic partnerships. They move to
South Florida and become registered domestic partners in
Broward County in 2005. Thereafter, they pool their income
and acquire assets and liabilities both individually and jointly.
They marry in Florida on January 6, 2015. Petitioner files for
divorce in Florida on January 6, 2025.
 Determination of duration of marriage?
 Is equity done under existing Florida Statutes?
 Is there an alternative or are there numerous alternatives?
42

43. Practice ScenarioTwo
 Same-sex couple meet in Massachusetts in 1995 and move in
together. Thereafter, they pool their income and acquire assets
and liabilities both individually and jointly. They marry in
Massachusetts on January 6, 2010. They move to Florida in
2012, their marriage fails and Petitioner’s 2013 dissolution
petition is denied. They reconcile (temporarily). Petitioner files
for dissolution in Florida in 2025.
 Determination of duration of marriage?
 Is equity done under existing Florida Statutes?
 Is there an alternative or are there numerous alternatives?
43

44. Practice ScenarioThree
 Same-sex female couple meet in Maine in 2000. Following artificial
insemination, biological mother gives birth. The child is not adopted
by the biological mother’s partner. The parties marry. Following the
parties’ marriage, biological mother gives birth to her second child.
Maine recognizes a marital presumption for children born during a
marriage. The parties move to Florida. The biological mother files for
dissolution of marriage.
 Determination of parental rights in 2013?
 Determination of parental rights in 2016?
 Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006) vs. DMT v. TMH,
129 So.3d 320 (Fla. 2013)?
44

45. Exemplar: Legal Issues Post Marital-Equality
California
 Elisa B. v. Superior Court, 117 P.3d 660 (Cal. Ct. App. 2005), extending
marital presumption to married same-sex spouses.
Colorado
 Senate Bill 15-016 (2015)(M 412-418).
Connecticut
 As of October 1, 2010, all Connecticut civil unions were converted into
marriages by operation of law. Upon conversion, these couples were
granted automatic inclusion to many, but not all, of the State laws
predicted upon marital status.
45

46. Exemplar: Legal Issues Post Marital-Equality
Iowa
 S. 598.21 – Property Division – Similar to Fla. Stat., §61.075 (2014); S.
598.21(A) – Alimony – Similar to Fla. Stat., §61.08 (2014).
 Gartner v. Iowa Dep’t of Public Health - In 2013, the Iowa Supreme Court
ruled that it is unconstitutional for the Iowa Department of Public Health
to refuse to list a non-birthing lesbian spouse on a child's birth certificate.
46

47. Exemplar: Legal Issues Post Marital-Equality
Massachusetts
 MGL c.207 – The same laws and procedures that govern traditional
marriage also apply to same-sex marriages. There are no special
procedures for a same-sex marriage.
 Della Corte v. Ramirez, 81 Mass. App. Ct. 906 (2012) – A child born of
a same sex marriage is the legitimate of both people.
 Hunter v. Rose, 463 Mass. 488 (2012) – A registered domestic same-
sex partnership entered into California was held to be the equivalent
of marriage in the Commonwealth.
47

48. Exemplar: Legal Issues Post Marital-Equality
New Hampshire
 NH 457:45 - A civil union legally contracted outside of New Hampshire, or any legal union other
than a marriage that provides substantially the same rights, benefits and responsibilities as a
marriage that is legally contracted outside of New Hampshire, shall be recognized as a marriage in
this state, and any person in such legal union contracted outside of New Hampshire may also marry
the same party in New Hampshire without the dissolution of such legal union, provided that the
relationship does not violate the prohibitions of this chapter.
 457:3 - Every marriage legally contracted outside the state of New Hampshire, which would not be
prohibited under RSA 457:2 if contracted in New Hampshire, shall be recognized as valid in this
state for all purposes if or once the contracting parties are or become permanent residents of this
state subsequent to such marriage, and the issue of any such marriage shall be legitimate.
Marriages legally contracted outside the state of New Hampshire which would be prohibited under
RSA 457:2 if contracted in New Hampshire shall not be legally recognized in this state. Any marriage
of New Hampshire residents recognized as valid in the state prior to the effective date of this
section shall continue to be recognized as valid on or after the effective date of this section.
48

49. Exemplar: Legal Issues Post Marital-Equality
Vermont
 S. 115, §8 – Marriage is the legally recognized union of two people. . . .
Terms relating to the marital relationship or familial relationships shall be
construed consistently with this section for all purposed throughout law,
whether in the context of statute, administrative or court rule, policy,
common law, or any other source of civil law. (September 1, 2009).
49

50. Emerging Issues -Transsexuals
 Current legal framework treats sex as binary and does not account for
gender identity. Sex is fixed, therefore, at birth and immutable.
 Anatomical sex, gender identity and sexual orientation.
 Transgendered vs. Transsexual
 In re Declaratory Relief for Ladrach, 513 N.E.2d 828, 832 (Ohio Prob.
Ct. 1987)(denying post-operative MTF transsexual order adjudging
her female and denying his request to amend birth certificate).
 Littleton v. Prange, 9 S. W. 3d 223 (Tex. App. 1999)(finding MTF
transsexual to be male as, “her female anatomy . . . is all man made”).
50

51. Emerging Issues -Transsexuals
 M.T. v. J.T., 355 A.2d 204 (NJ App. 1975)(finding MTF transsexual to be
female at time of marriage thereby determining marriage to be valid
and obligating Husband to support his Wife).
 In re Application for Marriage License for Nash, 2003 WL 23097095
(Ohio Ct. App. Dec. 31, 2003)(denying marriage license to FTM
transsexual, who had amended birth certificate from foreign state,
reasoning that because the wife was male at birth the state’s
statutory ban on marriage for same-sex couples applied and
precluded licensure to two men).
51

52. Emerging Issues -Transsexuals
Kantaras v. Kantaras, 884 So.2d 155 (Fla. 2d DCA 2004).
 Wife knew Husband was FTM transsexual – formerly Margo now Michael.
Wife gave birth to FB’s baby, parties’ married, Michael adopted child. Later,
Wife gave birth to another child (artificial insemination, Michael’s brother’s
sperm). Michael filed petition for dissolution of marriage in Florida and
sought, among other relief, parental rights. Wife counter-petitioned that
marriage was void as both she and Michael were women.
 Trial court held that marriage was valid as Michael was a man at the time of
marriage.
 The Appellate Court reversed, noting that, “male and female, as those terms
are used statutorily, . . . refer to immutable traits determined at birth.”
Further, as the Appellate Court concluded the marriage was void ab initio, it
remanded to the trial court all issues regarding all requested relief.
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53. Emerging Issues -Transsexuals
Florida Birth Certificate Amendment Policy - § 382.016
 A copy of an order granting name change;
 Notarized affidavit of physician that completed sex reassignment
surgery;
 Medical records evidencing complete sex reassignment and that the
individual is a new gender for medical purposes, also physician
signed; and
 Payment of $20.00 recordation fee.
53

54. Emerging Issues - Intersexed
“The assumption that there are two separate roads, one leading
from XY chromosomes at conception to manhood, from XX
chromosomes at conception to womanhood. The fact is that
there are not two roads, but one road with a number of forks
that turn in the male or female direction. Most of us turn in the
same direction at each fork.
The bodies of the millions of intersexed people have taken a
combination of male and female forks and have followed the
road less traveled.”
In re Carolyn Ann Taylor, No. 03CA1753, 2003 WL 22382512, at *2 (D.C. Super.
Mar. 17, 2003).
54

55. Emerging Issues - Intersexed
There are almost no reported U.S. family law cases addressing
intersex people.
 Peipho v. Peipho, 88 Ill. 438 (Ill. 1878) (affirming dismissal of bill for divorce
because husband, who sought the divorce based on the grounds that his
wife was “an hermaphrodite,” had been married for nearly eight years
before making any complaint).
 “In the absence of strong rebutting facts, he must be taken to have accepted
the situation, and can not now be heard to complain. Mere motives of
delicacy are not a sufficient explanation of such long continued
acquiescence.” Id.
55

56. Emerging Issues - Intersexed
“I am satisfied on the evidence that the husband was neither a man nor woman
but was a combination of both, and a marriage in the true sense of the word as
within the definition referred to above could not have taken place and does not
exist.”
In the Marriage of C. and D., 35 FLR 340, 28 ALR 524, (Fam. Ct. Australia
1979).
“Why may not a child, hermaphrodite, or eunuch, contract binding marriages?
Plainly for the same reason. Such instances illustrate well what are the kind of
marriages absolutely void in law . . . .”
The State v. Scion Barefoot, 2 Rich. 209, 1845 WL 2580 (S.C. App. L. 1845)
(Richardson, J.).
56

57. Emerging Issues - Intersexed
 Laws that define sex as binary – either male or female – exclude individuals that are
intersexed.
 Medical literature, however, suggests 1% to 4% of the world’s population may be
intersexed, presenting either ambiguous or incongruent anatomical sex features.
 The legal boxes created for marriage, incarceration, rest rooms, and statutory
protections do not fit intersexed people.
 The classifications insisting on the classification of people as men or women
exclude between 3,188,819 and 12,755,276 Americans and between 198,932
and 795,731, Floridians.
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58. 58

59. Thank you for your kind attention
 Special thanks from Ted Uno to:
 Lauren Alperstein, Esq.
 Joanna Steele
 Daniel Kennedy
 Special thanks from Chris Rumbold to:
 Gladstone & Weissman, P.A.
 Tova Verchow, Law Clerk
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