Florida court fast-tracks key gay marriage case to state Supreme Court

In a somewhat unusual move, a Florida court directly referred a case involving the divorce of a same-sex couple to the state Supreme Court. The high court's decision could make Florida the 20th state to legalize gay marriage.

Natalie Fertig/The Miami Herald/AP/File
Pro- and anti-gay marriage demonstrators rally outside the Miami-Dade Courthouse in Miami in July as six same-sex couples inside petition a Miami-Dade judge to issue them marriage licenses.

A Florida appeals court is urging the state’s highest court to take up a case testing whether Florida must facilitate divorces among same-sex couples despite a constitutional ban on marriages of same-gender partners.

Florida’s Second District Court of Appeal voted 10 to 3 to immediately refer the divorce case, Shaw v. Shaw, to the Florida Supreme Court, before the appeals court considered the case.

“We conclude that certification is appropriate,” the court said in a six-page order released on Wednesday.

The judges said the case “requires immediate resolution by the Florida Supreme Court because the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”

Any involvement by the Florida Supreme Court in a same-sex marriage case potentially holds huge implications for the rights of gay men and lesbians in the state.

Much of the explosion of litigation challenging same-sex marriage bans nationwide is taking place in federal courts with the eventual goal of reaching the US Supreme Court for a decision that would apply to the entire country.

But there is a parallel track for litigation occurring within each state. State supreme courts in Connecticut, Iowa, Massachusetts, New Jersey, and New Mexico each ruled that same-sex marriages must be recognized under their own state constitutions. The Florida Supreme Court could reach a similar conclusion.

Such a decision would invalidate a 2008 constitutional ban and immediately make Florida the 20th state to recognize same-sex marriages.

The case referred to the Florida high court was decided by a state judge in Tampa who dismissed a divorce petition on grounds that she had no authority to end a marriage that Florida law never recognized.

The couple, Mariama Changamire Shaw and Keiba Shaw, were married in Massachusetts in 2010. They moved to Florida, but then separated in 2013. The couple filed for divorce in January.

Massachusetts recognizes same-sex marriages. Florida does not. The couple could return to Massachusetts for a divorce, but that state requires that anyone seeking a divorce must be a resident of Massachusetts for at least one year.

Among the 19 states that recognize same-sex marriages, all but two require residency of six months to a year to be eligible for a divorce. The two exceptions: Illinois has a 90-day requirement and Washington State imposes no time requirement for divorce by state residents.

Rather than taking their plight to Massachusetts or another state, the Shaws are asking Florida judges to invalidate the state’s statutory and constitutional restrictions on same-sex marriages.

After a state judge dismissed their petition, normally the case would be heard by a state appeals court. But in a somewhat unusual move, the appeals court decided that the issue was important and timely enough that it should be routed directly to the Florida Supreme Court.

In directing the matter to the high court, the appeals court noted that the case raised questions about whether the US Constitution’s Full Faith and Credit Clause requires Florida to recognize a Massachusetts same-sex marriage for purposes of granting a divorce.

But the court said the case also raised broader questions, including access to the courts, equal protection, and the right to travel.

The appeals court noted that at least three other Florida courts have ruled recently that the state’s ban on same-sex marriages is unconstitutional.

One of those cases involved a request to dissolve a 2002 Vermont civil union between Heather Brassner and Megan Lade. The judge in that case found that the Florida ban on same-sex marriage and a prohibition on recognition of same-sex marriages violated a fundamental right to marry and a right by same-sex couples to equal protection of the laws.

In referring the Tampa case to the state high court, the appeals court judges said that because of the significant constitutional implications, the case would have ultimately arrived at the Florida Supreme Court anyway.

“There can be little doubt that until the constitutional questions are finally resolved by the Florida Supreme Court or the United States Supreme Court, there will be a great impact on the proper administration of justice in Florida,” the appeals court judges said.

Three members of the appeals court disagreed with the decision to refer the matter immediately to the Florida Supreme Court. The dissenters said the appeals court should hear the case and resolve it on narrow grounds.

“It is important to understand that the issue in this case is not whether Florida is constitutionally compelled to marry same-sex couples,” Judge Chris Altenbernd wrote in a five-page dissent.

“Although the parties argued broader issues to the circuit court, the narrow, dispositive issue in this case is whether Florida under the Full Faith and Credit Clause of the US Constitution, must give credit to these lawful out-of-state marriages for the purpose of dissolution,” he said.

Judge Altenbernd said the appeals court should take up that narrow issue on an expedited basis and decide it.

“This issue, unlike the constitutionality of the ban on same-sex marriage, may never require the attention of the supreme court,” he said.

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