A lesbian couple from Tampa will have to wait for the Florida Supreme Court to rule on the constitutionality of the state’s gay marriage ban before the women’s divorce case can be settled.
The high court Friday sent the case back to the 2nd District Court of Appeal, saying the appellate court should first rule on the case of Mariama Changamire Shaw and Keiba Lynn Shaw. The couple were married in Massachusetts and tried to get divorced in Hillsborough County.
Circuit Judge Laurel Lee refused in May to grant the divorce, saying she couldn’t dissolve a marriage that does not legally exist in Florida. The Shaws appealed, arguing the ban on recognizing same-sex marriages was unconstitutional.
Without ruling on the issues, 10 judges of the 2nd DCA took the unusual step of asking the state Supreme Court to settle the question about the gay marriage ban, certifying the issue on Aug. 27 as being of “high public importance.”
The Florida Supreme Court, however, agreed with three dissenting appellate judges who said it was premature to send the case to the high court.
The Supreme Court’s announcement came the day after five cities, including St. Petersburg, Orlando and Miami Beach, asked the high court for permission to file a brief supporting the petitioners’ right to divorce.
“Our mayors and commissioners have resolved that marriage discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) individuals is inimical to our citizens’ health and welfare, detrimental to our efficiency and effectiveness as employers, and costs government ... hard earned tourism revenue,” the motion says. “Likewise, Florida’s prohibition on recognizing same sex marriages that were performed outside of Florida unfairly denies married LGBT individuals the ability to terminate their legal relationship and wind up their finances, child custody, and support arrangements, even once their underlying relationship has ended. Florida’s refusal to allow married same sex couples to obtain a divorce is psychologically harmful and financially burdensome for same sex couples and their families.”
Lawyer Brett Rahall, who represents one of the women seeking a divorce, Changamire Shaw, said Friday he’s disappointed by the Supreme Court’s decision but sees it as more as a procedural issue than a setback on the larger stakes.
“To me, it has absolutely no indication whatsoever on the merits on the case and what the final outcome is going to be,” Rahall said. He said he expects the 2nd DCA to rule quickly in favor of the divorce, and that decision to have statewide implications.
In sending the case back, the Supreme Court said it was relying on the reasoning of Judge Chris Altenbernd, who wrote a dissenting opinion when the appellate court certified the case to the Supreme Court.
“Given that same-sex marriages are a recent development in other states,” Altenbernd wrote, “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 of the Supreme Court.”
Adam Cordover, who represents Keiba Lynn Shaw, said, “We are sorely disappointed as we were hoping for an expedited resolution. My client came to a full settlement agreement with her wife via the collaborative process, and now she simply wants to be divorced.”
State appellate courts routinely certify about 20 to 25 cases a year as being of high public importance, requesting a ruling from the Supreme Court, according to court spokesman Craig Waters. But only one or two of those each year happen without the appellate court issuing its own decision first.
Rahall noted that on Thursday, Attorney General Pam Bondi missed the deadline to appeal a Broward County judge’s ruling granting a divorce to a same-sex couple, meaning that on Wednesday, the first same-sex divorce in the state of Florida will be official.
Bondi’s office has not entered the Shaw case in Tampa, although it has been notified.
“The attorney general has not appeared in any of he same-sex divorce cases in the state of Florida, and we believe that’s on purpose because they agree” the divorces should be granted, Rahall said. The state is “unable to come up with a compelling reason as to why same sex couples should not be divorced.”
The Associated Press contributed to this report.