We would like to thank a few of the other applicants for the Brandon Legal Group Scholarship.  Selecting the right winner from among the essays submitted was not an easy task.  We present the essay here by Gracy D. Crumpton from St. Thomas University School of Law.  While Gracy did not win the scholarship, her entry certainly deserves an “honorable mention”.

Family Values: Tradition and The Evolving Definitions of Marriage and Family

Essay Topic: How Has the Definition of Marriage and/or Family Changed Over the Last Century?

by Gracy D. Crumpton

The legal definition of marriage has changed within the last century in the United States. Traditionally, marriage was a union between a man and a woman and only such unions were recognized by the government. Many states recognized common law marriage, which is a legally recognized marriage between a man and a woman who present themselves to the community as a married couple, but they have not purchased a marriage license or had a formal ceremony.[1] Today, only a few states recognize common law marriage.[2] Not until the Supreme Court’s ruling in Obergefell v. Hodges, was the definition of marriage extended to include the marriages of same sex couples.[3]  In Obergefell, the Court held that the Fourteenth Amendment required all states to issue marriage licenses to same sex couples and recognize same-sex marriages.[4]

Many states, including Florida, passed amendments to their state constitutions that outlawed same sex marriage or defined marriage as the union between a man and a woman.[5] Obergefell invalidated Florida’s definition of marriage and all states’ statutes that outlawed same sex marriage. Florida, like other similarly situated states, has not amended its constitution to recognize same sex marriage. This may be due in part to the state legislature anticipating that future Supreme Court decisions concerning the recognition of same sex marriage could change and permit the states to choose how they recognize and define marriage. Obergefell changed how states regulate marriage. The Court’s decision to address the legitimacy of same sex marriage is just one example of how the definition of the American family has changed within the last century. These changes to the traditional family structure resulted in the state and federal government extending to same sex couples the right to create and be legally recognized as a family.[6]

Throughout the years, federal and state courts have defined the meaning of family. In Moore v. City of East Cleveland, the Supreme Court extended the definition of family beyond the traditional nuclear makeup when it held an Ohio ordinance unconstitutional because it defined family too narrowly.[7] How people may create a family was a question for Florida courts. In Fla. Dept. of Children and Families v. Adoption of X.X.G., the Third District Court of Appeal held that a Florida statute[8] that prohibited a homosexual person from adopting a child was unconstitutional.[9]  The trial court found that the homosexual foster father was a fit parent, and the adoption was in the best interests of the children.[10] Additionally, the Florida statute violated the equal protection provision in the Florida Constitution.[11]

Here, Florida law allowed a homosexual person to be a foster parent, but a Florida statute prohibited homosexual persons from becoming adoptive parents. This was an example of how a state was inconsistent in its recognition of who had the right to make a family. Lastly, this case demonstrates that state and federal laws must reflect the changes in the times as to protect and keep families together.

[1] National Conference of State Legislatures (NCSL), Common Law Marriage by State, http://www.ncsl.org/research/human-services/common-law-marriage.aspx.html. (Last visited May 20, 2017).

[2] See id.

[3] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[4] Id.

[5] See Fla. Const. Art. I, § 27.

[6] See Alma G. Lopez, Homosexual Marriage, the Changing American Family, and the Heterosexual Right to Privacy, 24 Seton Hall L. Rev 347, 348 (1993). See also Paula L. Ettelbrick, Youth, Family and the Law: Defining Rights and Establishing Recognition: Article: Wedlock Alert: A Comment on Lesbian and Gay Family Recognition, J.L. & Pol’y 107, 114 (1996) (stating that gay and lesbian family advocacy “prompts provocative questions about the central elements of the family . . . [such as] the role of marriage on the twenty-first century and the validity of legal boundaries for the most intimate human relationships called family . . .”).

[7] Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977) (holding that an Ohio ordinance that prohibited a grandmother from living with her grandchild was unconstitutional. The Court stated that the Constitution protects the sanctity of family because the institution of family is deeply rooted in America’ s history and tradition, and there is a “tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable an equally deserving of constitutional recognition”).

[8] Fla. Stat. § 63.042(3).

[9] Fla. Dep’t of Children & Families v. X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010).

[10] Id.

[11] Id. at 92. See also Fla. Const. Art. I, § 2 (stating that “all natural persons, female and male alike, are equal before the law . . . . The Court held that the Florida statute treated the homosexual foster father unequally while allowing straight persons with histories of drug abuse and crime to be considered on a case by case basis).

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