Gay marriage case sent to Florida Supreme Court
NEWS SERVICE FLORIDA
Florida’s ban on gay marriage is now in the hands of the state’s highest court after an appeals court asked that the justices resolve the controversial prohibition.
The request Wednesday from the 2nd District Court of Appeal for the first time puts the Florida Supreme Court in the position of deciding whether to take up the issue after five recent state and federal court decisions, including one in Monroe County, found that the voter-approved prohibition against same-sex marriage is unconstitutional.
The appeals court made the request in a 10-3 ruling in a case involving the divorce of Mariama Monique Changamire Shaw and Keiba Lynn Shaw, a lesbian couple married in Massachusetts in 2010. Hillsborough County Circuit Judge Laurel Lee refused to grant the couple a divorce because state law bans same-sex marriages.
The couple appealed Lee’s ruling and asked the 2nd District Court of Appeal to “pass through” the case to the Supreme Court. A panel of the appellate court originally refused but, in an unusual twist, the full court revisited the case, resulting in Wednesday’s ruling. It is unknown whether the Supreme Court will agree to take up the case.
The issue is whether Florida’s ban on same-sex marriage and the prohibition on recognizing such marriages “unconstitutionally limits various constitutional guaranties including full faith and credit, access to courts, equal protection and the right to travel,” the majority wrote in the 11-page ruling.
Because the pair could not get a divorce in the lower court, their only options would be to go to the Supreme Court or establish residency in a state that recognizes same-sex marriages, the majority wrote. A Broward County judge recently struck down the same-sex marriage ban in another divorce case but put the ruling on hold until appeals are complete in two other lawsuits.
The 2nd District Court of Appeal’s decision to revisit the pass-through to the Supreme Court came after the Broward ruling. In a dissent, Judge Chris Altenbernd, joined by two other judges, argued that the divorce case is much narrower. “It is important to understand that the issue in this case is not whether Florida is constitutionally compelled to marry same-sex couples,” Altenbernd wrote.
Instead, the case revolves around whether same-sex couples are being denied the constitutionally-guaranteed right to access the courts, Altenbernd wrote. But he rejected the majority’s position that the administration of justice would be negatively impacted unless the case was rushed to the Supreme Court. Such cases should only be passed through if there is a level of statewide urgency, he wrote.
Lawyers for the Tampa couple had also notified Attorney General Pam Bondi, who is defending the law in other cases, about the Shaw case, but Bondi’s office never responded, Altenbernd noted.
Bondi’s office said Wednesday it is reviewing the appellate court decision. In the wake of a landmark U.S. Supreme Court decision last year, circuit judges in Monroe, Miami-Dade, Broward and Palm Beach counties and a federal judge in Tallahassee have ruled against the state’s gay-marriage ban. Bondi has asked that appeals in the Miami-Dade and Monroe cases be put on hold until the U.S. Supreme Court decides on similar cases.
Gay rights advocates are hoping that the Florida Supreme Court will take up the Shaw case and send a signal to other appellate courts to also expedite their cases. “We believe this will have a ripple effect,” said Stratton Pollitzer, deputy director of Equality Florida, which is involved in several of the lawsuits.
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