Yes, gay marriage is legal in Florida. Same-sex couples have been able to marry statewide since January 6, 2015, when a federal court order struck down Florida’s ban, and the U.S. Supreme Court’s June 2015 decision in Obergefell v. Hodges made marriage equality the law nationwide. County clerks in all 67 Florida counties issue marriage licenses to same-sex couples under the same rules that apply to any other couple.
How Florida Reached Marriage Equality
Florida’s ban fell in federal court before the Supreme Court ruled. In August 2014, U.S. District Judge Robert L. Hinkle held in Brenner v. Scott that Florida’s exclusion of same-sex couples from marriage violated the Fourteenth Amendment’s due process and equal protection guarantees.1Justia Law. Brenner et al v. Scott et al, No. 4:2014cv00107 His order was stayed briefly, but the stay expired at the start of 2015 and clerks statewide began issuing licenses on January 6.
Five months later, on June 26, 2015, the Supreme Court decided Obergefell v. Hodges 5–4. Justice Anthony Kennedy’s majority opinion held that the Fourteenth Amendment requires every state to license marriages between two people of the same sex and to recognize such marriages lawfully performed elsewhere.2Department of Justice. a href=”https://www.justice.gov/sites/default/files/crt/legacy/2015/06/26/obergefellhodgesopinion.pdf” target=”_blank” rel=”noopener”>Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. For Florida, Obergefell locked in what Brenner had already delivered.
Florida’s Old Ban Is Still in the Books
Florida law still contains two provisions that once barred same-sex marriage. Amendment 2, which voters approved in 2008 by a 61 percent margin, added Section 27 to Article I of the Florida Constitution and declares that marriage is the legal union of only one man and one woman as husband and wife.3Florida Senate. The Florida Constitution Section 741.212 of the Florida Statutes, passed in 1997, states that same-sex marriages “are not recognized for any purpose in this state.”4The Florida Legislature. Florida Statutes 741.212 – Marriages Between Persons of the Same Sex
Both are unenforceable under Obergefell. Neither has been repealed. In 2021, House Bill 6017 and Senate Bill 558 would have removed the defunct language, and both died in committee without a vote.5Florida Senate. Senate Bill 558 (2021) The day-to-day effect on couples is nothing: clerks issue licenses, courts treat the marriages identically. The reason the dormant language matters is what it would mean if Obergefell were ever overturned.
The Federal Backstop
Congress addressed that vulnerability with the Respect for Marriage Act, which President Biden signed on December 13, 2022. The law does two things. It repeals the Defense of Marriage Act and provides that, for any federal law or regulation, a person is considered married if the marriage was valid in the state where it was performed.6Office of the Law Revision Counsel. 1 USC 7 – Marriage It also requires every state to give full faith and credit to marriages from other states and forbids a state from denying rights arising from those marriages based on the sex, race, ethnicity, or national origin of the spouses.
What the Act does not do is guarantee that every state would keep issuing new same-sex marriage licenses if Obergefell fell. That decision would revert to individual states. The Act also includes a religious liberty provision clarifying that religious organizations cannot be compelled to perform marriages that conflict with their beliefs.
Getting a Marriage License in Florida
The application process is the same for same-sex and opposite-sex couples. You apply in person at any county clerk of court office in Florida, and neither partner needs to be a state resident.
- Fee: $86, or $61 if both partners are Florida residents and present a certificate of completion from a state-approved premarital preparation course.
- Waiting period: three days from issuance before the license takes effect, waived entirely if both partners complete the four-hour premarital course.
- Identification: both partners must provide Social Security numbers (or alien registration numbers for non-citizens) and a valid photo ID such as a driver’s license, passport, or military ID.
- Prior marriages: if either partner was previously married, the exact date of divorce, death, or annulment must be provided, along with the state and county where any divorce occurred.
The premarital course must have been completed within one year before applying, and the certificate is presented to the clerk at application.7Florida Court Clerks & Comptrollers. How Do I Apply For A Marriage License? There is no separate license type, form, or fee structure for same-sex couples.
Parental Rights After Marriage
Florida once had one of the most restrictive adoption laws in the country, but that ban was struck down in 2010 and formally repealed in 2015. Same-sex couples now adopt under the same procedures as any other prospective parents.
Marriage itself strengthens parental rights. When a married couple has a child through birth, surrogacy, or adoption, both spouses are presumed legal parents. For same-sex couples who used assisted reproduction, that presumption does not always travel well across state lines. A parentage order or adoption decree issued by a Florida court carries more weight than a birth certificate alone, because the U.S. Constitution requires every state to honor valid court judgments. If one parent has no biological or adoptive legal tie to the child, a confirmatory adoption or parentage judgment is worth considering. Those court orders are final, portable, and recognized nationwide, including in states hostile to same-sex families.
Benefits and Financial Protections
Legal marriage in Florida unlocks the same federal and state protections available to any married couple:
- Federal taxes: joint or married-filing-separately returns, with the same brackets, deductions, and credits as any married couple.
- Social Security: spousal and survivor benefits on the same terms as opposite-sex spouses. The Social Security Administration also allows survivors of same-sex couples who could not marry because of state bans to claim benefits on a showing that they were in a committed relationship and would have married had the law permitted it.
- Employer benefits: the Department of Labor applies a “state of celebration” rule under ERISA, so private employers’ retirement and health plans must recognize any marriage valid where it was performed, regardless of where the couple lives now. Some non-ERISA plans, including certain government and church plans, may follow different rules.
- State benefits: Florida grants married spouses homestead property protections, an elective share of a deceased spouse’s estate, hospital visitation, and medical decision-making authority. These apply equally to same-sex spouses.
Divorce Works the Same Way
Same-sex couples end their marriages under the same process as anyone else. At least one spouse must have been a Florida resident for six months before filing a petition for dissolution of marriage.8Florida Senate. Florida Statutes Chapter 741 Section 04 The petition goes to the circuit court in the county where either spouse lives. Florida is a no-fault state; the only required ground is that the marriage is irretrievably broken.
One issue that can arise is how long the marriage lasted for purposes of dividing assets or calculating alimony. Couples who were together for years before marriage became legal in 2015 may have built shared assets during a period the law did not recognize. Florida courts generally use the legal marriage date when dividing marital property, which can disadvantage a spouse who contributed to a household long before that date. A family law attorney can weigh equitable arguments that may apply.
How Secure Is the Right Going Forward
The foundation is more secure than it was before 2022, but not untouchable. In his concurrence in Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas wrote that the Court should reconsider its substantive due process precedents, “including Griswold, Lawrence, and Obergefell.”9Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 19-1392 No other justice joined that portion, and the Dobbs majority explicitly stated it was not disturbing those precedents. The signal was clear enough to move Congress to pass the Respect for Marriage Act months later.
If Obergefell were ever overturned, whether Florida would resume issuing same-sex marriage licenses would turn on whether Amendment 2 and Section 741.212 had been repealed by then. The Respect for Marriage Act would still require Florida to recognize marriages performed in states that continued to allow them, but it would not require Florida to issue new licenses. For couples who have not yet married, the most concrete step is to marry now, while the right is unambiguous, and to secure court-ordered parentage judgments for any children.