Fabián Basabe proposes amendment to delete same-sex marriage ban from Florida Constitution

Image via Florida House.

Same-sex couples since 2015 have enjoyed equal marriage rights across America, thanks to a landmark U.S. Supreme Court ruling that preempted state bans on gay and lesbian unions.

Two such bans, one in the Florida Constitution and the other in Florida Statutes, could be removed in bills Miami Beach Republican Rep. Fabián Basabe has filed.

The first measure (HJR 167) calls for a statewide referendum during next year’s General Election proposing the removal of language in the Florida Constitution defining marriage as only being between one man and one woman.

The other (HB 169) would effectuate HJR 167 by repealing a section of Florida Statutes (741.212) asserting the same definition and barring state recognition of marriages that do not fit that standard. For the better part of a decade, Democratic lawmakers have filed nearly identical bills that did not once receive a hearing in the GOP-dominated Legislature.

Basabe drew the ire of progressives and LGBTQ people this year after he voted for legislation expanding a measure critics have called the “Don’t Say Gay” law. Lawmakers also criminalized the admittance of children to drag shows with “lewd” performances and banned transgender people from using bathrooms in government buildings that correspond with their gender identity.

He told Florida Politics he filed HJR 167 and HB 169 “in good conscience with the hope of demonstrating bipartisan support” for a cause Democrats have almost exclusively championed.

Further, he said, he deliberately forwent seeking a Senator sponsor for the two bills in order to “gauge where my colleagues stand on this matter.”

“I encourage the other Representatives to make their decisions based solely on their conscience, whether it be to stand up or down,” he said by text.

Since 2021, Democratic Sen. Tina Polsky of Boca Raton has carried a measure similar to HB 169, with House support from St. Petersburg Democratic Rep. Michele Rayner, the first openly queer Black woman elected to the Legislature.

Sponsors of similar legislation since 2017 included Daphne Campbell, Anna Eskamani, Gary Farmer, Adam Hattersley and Vic Torres, all Democrats. Unlike Basabe’s version, those bills targeted only state statutes and not the Constitution’s language.

Polsky filed the proposal (SB 160) for consideration again during the 2024 Legislative Session last week. She told Florida Politics that Rayner submitted its House companion and “is looking into” the redundancy Basabe’s presents in relation to it.

Basabe said HB 169 was among the first bills he filed for the 2024 Session. He noted that there is a system in place to notify lawmakers of when their bills are substantively similar to those others have filed in order to avoid redundancies.

Florida Politics contacted Rayner’s Office for comment but did not receive a response.

“We need to clear this up,” Polsky said.

HJR 167, meanwhile, proposes a tack not taken since 2008, when 62% of Florida voters approved a constitutional amendment prohibiting same-sex marriage. That provision can be found in Article I, Section 27, which states, “Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantive equivalent thereof shall be valid or recognized.”

Voters OK’d that language while also siding with Democrat Barack Obama for President.

But while Section 27 is only about 15 years old, bans on marriage equality have existed in the Sunshine State for decades.

In 1977, then-Gov. Reubin Askew, a Democrat, signed legislation prohibiting homosexuals from marrying or adopting children. In 2005, U.S. District Judge James Moody, the father of Attorney General Ashley Moody, upheld that ban in the case Wilson v. Ake, which concerned a lesbian couple’s attempt to have their marriage from Massachusetts recognized in Florida.

A decade later, in its landmark ruling in the case of Obergefell v. Hodges, the U.S. Supreme Court rendered the ban impotent. The court struck down all state prohibitions of same-sex marriage and required states to recognize all out-of-state unions as well.

That’s the law and policy today. But in the wake of Roe v. Wade’s overturning by a U.S. Supreme Court markedly more conservative than in 2015, many worry a reversal of Obergefell looms. That concern grew further following a ruling by the court in June that again allows businesses to deny services to LGBTQ people on First Amendment bases, regardless of any state statutes that would otherwise disallow such discrimination.

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Editor’s note: This report was updated to include additional comments from Basabe and to note that lawmakers are notified when they are sponsoring bills similar to those others have filed.