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Monday, May 21, 2018
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Florida Supreme Court asked to rule on gay marriage

— The case of a same-sex Tampa couple wanting to dissolve their Massachusetts marriage was sent to the Florida Supreme Court Wednesday by a state appellate court that took the unusual step of asking the high court to decide a case without issuing its own decision first.

Even as the case of Mariama Changamire Shaw and Keiba Lynn Shaw vaults to the state Supreme Court, no judge has yet specifically ruled on the constitutional issues at the center of the case: whether the state must legally recognize a same-sex marriage performed in another state for purposes of granting a divorce.

Four other state court judges and one federal judge have overturned Florida’s ban on gay marriages. But those rulings have all been put on hold while Attorney General Pam Bondi appeals. Consequently, the decisions do not yet have the force of law in Florida.

Earlier this month, Bondi said Florida should stop appealing gay marriage rulings in state courts and wait for the U.S. Supreme Court to rule on the issue. Her office filed two motions in a state appeals court, requesting a freeze on appeals of cases concerning the state’s constitutional amendment banning gay marriage approved by voters in 2008. Bondi says the state will defer to the Supreme Court.

Bondi’s office had not asked for a freeze on the Shaw appeal, and it shot to the front of the pack Wednesday, becoming the first case before the state Supreme Court.

Although Bondi’s office has defended the same-sex marriage ban in other cases, the attorney general’s office has not filed any pleadings in the Shaw divorce case, although it was invited twice to enter the case.

It remained unclear whether Bondi will get involved in the Shaw case now that it’s before the state Supreme Court. Asked whether the office will file an appearance in the case, Bondi spokeswoman Jennifer Meale said only, “We will review the ruling.”

“I would think, if they’re going to be consistent in their backward ideas, they would have filed in opposition to this case,” said attorney Brett Rahall, who represents Changamire Shaw.

Hillsborough Circuit Judge Laurel M. Lee in May declined to grant the Shaws a divorce, ruling she couldn’t dissolve a marriage which legally does not exist in Florida. Although lawyers had argued that the state’s ban on recognizing same sex marriage was unconstitutional, Lee didn’t directly address the issue.

Lawyers appealed to the 2nd District Court of Appeal, which also didn’t rule on the constitutional issues. Instead, on Wednesday, the court certified the issue as being of “high public importance” and asked the Florida Supreme Court to step in.

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.

The high court typically receives about 2,400 to 2,500 appeals each year, Waters said.

The Supreme Court does not have to accept cases certified by appellate courts as involving matters of high public interest, but it usually does. Waters said the Supreme Court occasionally will send the cases back to the district court of appeal for its full review first.

The Supreme Court could consolidate all of the same-sex marriage cases or separate the divorce cases from the ones in which gay couples sued clerks of court who refused to grant them marriage licenses. The Family Law Section of the Florida Bar and the American Academy of Matrimonial Lawyers filed briefs in the case “as a matter of family and matrimonial lawyers seeking finality and certainty in their area of practice.”

“I’m very hopeful the Supreme Court will take the case,” Rahall said. “I do think it’s a matter of great public importance, and for statewide consistency, I think it’s important for the Supreme Court to step in and make a final ruling on these issues.”

Adam Cordover, attorney for Keiba Lynn Shaw, said he and his client are “absolutely thrilled” with the decision by the 2nd DCA to send the case to the Florida Supreme Court.

The attorneys had requested that the court do this earlier but were denied by a three-judge panel. Wednesday’s 10-3 decision was issued by the entire 2nd District Court of Appeal and came as a surprise, attorneys said.

“The wheels of justice generally turn slowly , and this just jump-started,” 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 majority wrote in the 11-page ruling.

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.

Because the issues involve an amendment to the state Constitution, they likely will be decided on the grounds of whether the state’s ban conforms with the U.S. Constitution, according to Louis Virelli, a constitutional law professor at Stetson University. It’s possible but unlikely that the state Supreme Court could rule that a state constitutional amendment violates another provision of the state’s own Constitution.

Because the U.S. Supreme Court is the ultimate arbiter of the U.S. Constitution, the last word on the topic likely will be spoken in Washington, D.C., not in Tallahassee.

But Virelli and lawyers involved in the case say any decision issued by the Florida Supreme Court - along with rulings being handed down around the country - probably will influence the U.S. Supreme Court.

If the courts don’t strike down the same-sex marriage ban in Florida, Virelli said, his personal opinion is the citizens of the state will eventually rescind it.

“Eventually the political process will reverse itself either way,” Virelli said, “and we’re well on our way, if my students are any gauge.”

The Associated Press and The News Service of Florida contributed to this report.

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Twitter: @ElaineTBO

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