In a highly unusual move, most of the judges on the Florida Second District Court of Appeal have agreed to certify to the state’s Supreme Court the question whether a Florida trial court has jurisdiction over a divorce proceeding of a same-sex couple who were married in another state. A panel of the court had rejected a request by the parties to refer the case to the Supreme Court on June 26, but the parties then asked for the entire court (the “en banc” court in legal jargon) to consider their request. Thirteen judges participated, voting 10-3 in favor of certifying the case, in a ruling issued on August 27 in Shaw v. Shaw, Case No. 2D14-2384.
Mariama M. Changamire Shaw and Keiba Lynn Shaw were married in Massachusetts in 2010 and thereafter moved to Florida. Their marriage broke down. They separated in 2013, and Mariama filed a divorce action in Hillsborough County. The women negotiated a voluntary settlement agreement and were looking to have the court incorporate their agreement into a final judgment dissolving their marriage, but the Hillsborough circuit court, on its own motion, decided that it did not have jurisdiction over the case.
The circuit court relied on Florida’s Marriage Amendment, which prohibits recognition of same-sex marriages, and a similar statutory prohibition, and took the position that it could not dissolve a marriage that it was prohibited from recognizing. The court said that it did not have “jurisdiction to dissolve that which does not exist under law.” The state’s Attorney General, Pam Bondi, had been notified about this case, but her office did not participate.
Mariama filed an appeal from the ruling, and Keiba filed a cross appeal, both asking for the same thing: that the 2nd District Court of Appeal reverse the jurisdictional ruling and direct the circuit court to decide their divorce case. However, seeking to avoid delay and noting the pendency of marriage equality cases, including divorce cases, in other Florida counties, they suggested that the court of appeal pass the case up to the Supreme Court for a quicker resolution that would have statewide effect.
The ten-judge majority, in a group opinion not attributed to any of the individual judges, noted the four prior Florida circuit court marriage equality decisions, including one from another county involving a divorce, some of which have already been appealed to the 3rd District Court of Appeal, and considered that the issues raised by this case have statewide importance. This conclusion was reinforced in a motion filed by the Family Law Section of the Florida Bar and the Florida Chapter of the American Academy of Matrimonial Lawyers, seeking to participate in the case as amicus curiae because of the importance of this case beyond the immediate parties. The majority of the 2nd District court concluded that “the order on appeal 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.”
The majority, contrary to the dissent, stated that the case did not merely raise the issue whether the Full Faith and Credit Clause of the U.S. Constitution requires Florida courts to recognize same-sex out of state marriages of Florida residents for purposes of divorce. Taking note of the range of trial court decisions around the state that are pending on review, the court said that the issue is “whether Florida’s ban on same-sex marriage and the prohibition on recognizing such marriages unconstitutionally limits various constitutional guarantees including full faith and credit, access to courts, equal protection, and the right to travel.” Although the circuit court’s decision did not give any sort of thorough analysis to these questions, relying solely on the state constitutional and statutory prohibition on recognizing such marriages as conclusive on the jurisdictional question, the majority observed that the broader constitutional questions had been briefed and argued by the parties and, in light of the contrary decisions by several other circuit courts holding the ban unconstitutional under the 14th Amendment of the U.S. Constitution, there was an urgent question of constitutional magnitude for the state’s highest court.
“Resolution of the constitutional questions will no doubt impact far more individuals than the two involved here,” wrote the court. “And 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. Similarly, in light of those questions, it seems clear that this a matter of great public importance.”
Judge Chris Altenbernd penned the dissent for himself and two other judges, rejecting the notion that this was a matter that should be passed directly to the state’s supreme court. “Although this case is of importance to these parties,” he wrote, “I cannot agree that this case is a proper subject for a pass through.” He pointed out that the circuit court’s order “contains no discussion of any constitutional argument and no express constitutional ruling. Most important, it has no discussion of the constitutionality of these provisions under the Full Faith and Credit Clause of the U.S. Constitution.” Both parties had appealed the order, which means, he wrote, “Apparently, no party intends to argue that the circuit court correctly dismissed this dissolution proceeding. The Attorney General has made no appearance in this case, and we do not know whether the Attorney General will argue that Florida law constitutionally prohibits these Florida residents from obtaining a divorce.”
In short, Altenbernd contended, this was an appropriate case for the district court of appeal to hear arguments and render a ruling. As far as he was concerned, the “dispositive issue in this case is whether Florida, under the Full Faith and Credit Clause of the U.S. Constitution, must give credit to these lawful out-of-state marriages for the purpose of dissolution. Presumably, this issue is comparable to the question of whether, after January 1, 1968, Florida was required to give such credit to lawful, out-of-state common law marriages.” He pointed out that when that question arose, it was decided consistently by several of the state’s district courts of appeal without any need to refer the question directly to the Supreme Court.
“Given that same-sex marriages are a recent development in other states,” he continued, “I am not convinced that Florida’s courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution. I cannot certify that this order will have ‘a great effect on the proper administration of justice throughout the state’ requiring immediate review in the supreme court.” He stated his confidence that the court of appeal could “ably consider this appeal and reach a proper resolution,” and pointed out that such a decision would have statewide effect “unless another district court disagrees with us” and might never require the attention of the Supreme Court.
Nowhere mentioned in this decision is the federal Defense of Marriage Act (DOMA), which provides in Section 2 that no state is required to give full faith and credit to same-sex marriages performed in other states. This is the section of DOMA that was not addressed by the U.S. Supreme Court last year in U.S. v. Windsor, although there is serious debate whether Congress had authority to enact this exception to the full faith and credit requirement stated in the Constitution. So far, DOMA Section 2 has generally not been mentioned or given any weight in the many federal district court rulings over the past year in marriage recognition cases. The courts have, with one exception from Tennessee, ruled in those cases that failing to recognize such marriages violates the Equal Protection Clause of the 14th Amendment.
Judge Altenbernd suggested that the court could adopt an interpretation of the state’s Marriage Amendment under which Florida courts could entertain divorce petitions, on the theory that dissolving same-sex marriages is not inconsistent with refusing to recognize them. Such a ruling, based solely on an interpretation of the Florida Constitution, would not present any federal question and would not be reviewable by the U.S. Supreme Court. It would finally resolve the problem of “wedlock” for married same-sex couples living in Florida.
However, such a ruling would leave unresolved the question pending before the 3rd District Court of Appeal in several other cases: whether same-sex couples have a constitutional right to marry in Florida. That question requires deciding whether the Florida Marriage Amendment violates the federal Constitution.
If the Florida courts were to decide that the divorce jurisdiction issue cannot be decided without analyzing the 14th Amendment or other federal constitutional provisions, their decisions would be subject to appeal to the U.S. Supreme Court and probably stayed pending appeal. Thus, it is possible that a Florida Supreme Court decision in this divorce case would not finally settle the question.
Mariama is represented in this case by Brett R. Rahall and Ellen E. Ware of Tampa. Keiba is represented by Deborah L. Thomson, Lara G. Davis and Adam B. Cordover, all of Tampa.