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076-31 -- February 6, 1976
MARRIAGE LICENSE
NOT REQUIRED TO BE ISSUED TO APPLICANTS OF SAME SEX

To: Fred W. Baggett, General Counsel, Florida Association of Court
Clerks, Tallahassee

Prepared by: Martin S. Friedman, Assistant Attorney General

QUESTION:
May two individuals of the same sex validly apply for a
marriage license, and is the clerk of the circuit court
required to accept such an application and thereafter issue
a license?

SUMMARY:
Two individuals of the same sex may not validly apply
for a marriage license; therefore, the clerk of the circuit
court is not required to accept such an application and
thereafter issue a license.
Subject to constitutional limitations, the state has exclusive
dominion over the legal institution of marriage, and the state alone
has the prerogative of creating and overseeing the institution. See
Light v. Meginniss, 22 So.2d 455 (Fla. 1945). Chapter 741, F. S.
(1974 Supp.), which governs marriages in Florida, requires the county
court judge or clerk of the circuit court to issue a marriage
license, upon application, if there appears to be no impediment to
the marriage, s. 741.01. Notwithstanding the fact that the law
relating to marriages uses neuter terms, I am of the opinion that it
does not contemplate "marriage" between persons of the same sex.
Three reported decisions exist in the United States which have
confronted this particular question. Singer v. Hara, 11 Wash.App.
247, 522 P.2d 1187 (1974); Jones v. Hallahan, 501 S.W.2d 588, 63
A.L.R.3d 1195 (Ky.Ct.App. 1973); and Baker v. Nelson, 291 Minn. 310,
191 N.W.2d 185 (1971), appeal dism'd, 409 U.S. 810 (1972). Each case
is in accord with the opinion expressed herein.
In absence of a statutory definition, words should be construed in
their plain and ordinary sense. Pederson v. Green, 105 So.2d 1 (Fla.
1958). Webster's New International Dictionary, Second Edition,
defines marriage as follows:
A state of being married, or being united to a person or
persons of the opposite sex as husband or wife; also, the
mutual relation of husband and wife; wedlock; abstractly,
the institution whereby men and women are joined in a
special kind of social and legal dependence, for the
purpose of founding and maintaining a family.
Black's Law Dictionary, Fourth Edition, defines marriage as:
The civil status, condition or relation of one man and
one woman united in law for life, for the discharge to each
other and the community of the duties legally incumbent
upon those whose association is founded on the distinction
of sex.
In B v. B, 78 Misc.2d 112, 355 N.Y.S.2d 712 (1974), and Anonymous
v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499 (1971), citing 52 Am.
Jur.2d Marriages s. 1, the courts stated that a marriage is and
always has been a contract between a man and a woman. In Jones v.
Hallahan, supra, the court stated:
Marriage was a custom long before the state commenced to
issue licenses for that purpose. For a time the records of
marriage were kept by the church. Some states even now
recognize a common-law marriage which has neither the
benefit of license nor clergy. In all cases, however,
marriage has always been considered as the union of a man
and a woman and we have been presented with no authority to
the contrary.
It appears to us that appellants are prevented from
marrying, not by the statutes of Kentucky or the refusal of
the County Court Clerk of Jefferson County to issue them a
license, but rather by their own incapability of entering
into a marriage as that term is defined.
A license to enter into a status or a relationship which
the parties are incapable of achieving is a nullity. If
the appellants had concealed from the clerk the fact that
they were of the same sex and he had issued a license to
them and a ceremony had been performed, the resulting
relationship would not constitute a marriage.
The United States Supreme Court in dismissing the appeal in Baker
v. Nelson, supra, for want of substantial federal question, in effect
ruled that the prohibition against persons of the same sex marrying
does not constitute a cognizable claim under either the First,
Eighth, Ninth, or Fourteenth Amendments to the United States
Constitution.
It is interesting to note that in Singer v. Hara, supra, the court
considered the effect of the state's equal rights amendment on this
question. The amendment is substantially similar to the ERA now
before the states for ratification. Prior to its passage, the
opponents of the state's ERA argued that such an amendment would
legalize homosexual marriages. In ruling that ratification of the
ERA does not legalize homosexual marriages, the court noted that the
primary purpose of the ERA is to overcome discriminatory legal
treatment as between men and women "on account of sex." The court
further stated that laws which differentiate between the sexes are
permissible so long as they are based upon the unique physical
characteristics of a particular sex rather than a person's membership
in a particular sex per se. Laws or policies prohibiting homosexual
marriages are clearly based upon the former principle.
Your question is answered in the negative.