By DARA KAM
News Service of Florida
TALLAHASSEE A Southwest Florida appeals court on Wednesday asked the state’s Supreme Court to decide the constitutionality of Florida's gay-marriage ban.
The 2nd District Court of Appeal’s request 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 found the voter-approved prohibition against same-sex marriage unconstitutional.
The Supreme Court has not indicated when — or if — it will hear the 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 10-3 ruling.
“This gives us a chance to get directly to the Supreme Court,” said Tampa family lawyer Ellen Ware, who represents Mariama Shaw. “Hopefully it’s time and energy saving and more efficient. Assuming the Supreme Court takes it. They don’t have to take it. I’m hoping that they will. I thought the opinion of the 2nd District was well reasoned and provides the Supreme Court with lots of good reasons to take it.”
Tampa attorney Adam B. Cordover, who represents Keiba Shaw, said both women have worked out all aspects of their separation.
“They came to a full agreement and at this point they just want to get divorced,” Cordover said.
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 appeals court wrote in an 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 appeals court decision to revisit the pass-through to the Supreme Court came after the Broward ruling.
"Others similarly situated would face the same challenge of establishing residence elsewhere. Should the district courts disagree, couples in different districts will receive disparate treatment until the issue is settled by the Florida Supreme Court. In any event, because of the constitutional implications the issue will likely be addressed by the Florida Supreme Court regardless of any decision we might make," the judges wrote.
But in a dissent, Judge Chris Altenbernd, joined by two other judges, 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.
“Given that same-sex marriages are a recent development in other states, 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,” Altenbernd wrote. “Although the issue on appeal is important to this couple, I am not convinced that the order on appeal represents an issue that is ripe to be treated as one of great public importance.”
Florida Attorney General Pam 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 appealed the Monroe and Miami-Dade cases, and defended the marriage ban in federal court. She asked that appeals in the Miami-Dade and Monroe cases be put on hold until the U.S. Supreme Court decides on similar cases.
Miami Herald Staff Writer Steve Rothaus contributed to this report.