TAMPA — While a Monroe County judge’s ruling is giving hope to many Florida gay couples who want to marry, lawyers think the decision might bolster the case of a couple in Tampa who are trying to divorce.
Thursday’s decision by Circuit Judge Luis M. Garcia striking down Florida’s ban on same-sex marriage drew national attention. The ruling came two months after a lesser-known decision by a Hillsborough County circuit court judge who indirectly upheld the ban by refusing to grant a divorce to two women wed in Massachusetts because the state doesn’t recognize the marriage.
Lawyers for the women, Mariama Changamire Shaw and Keiba Lynn Shaw, had argued the couple should be granted a divorce partly because the state’s law barring recognition of same-sex marriage violates the U.S. Constitution. Even though the ban was challenged in the Tampa case, Attorney General Pam Bondi did not send a representative to defend the ban in the Shaw case.
Lawyers for both women said they notified the attorney general’s office of the challenge in Tampa to the state’s 2008 constitutional amendment limiting marriage to opposite-sex couples, and the state’s 1997 Defense of Marriage Act. They said the office did not give a reason for choosing not to appear.
Circuit Judge Laurel M. Lee refused to grant the divorce, saying she is bound by the state Constitution and state law, which do not allow recognition of same-sex marriage. “Based upon the facts presented in this case, there is no valid marriage to be dissolved under the laws of Florida, and this action must be dismissed,” Lee wrote. “The court is without jurisdiction to dissolve that which does not exist under law.”
Lee’s May 9 order indirectly upheld some of the same provisions overturned by Garcia in Monroe County.
The Shaws are both appealing Lee’s ruling to the 2nd District Court of Appeal.
Bondi’s office announced Thursday that the attorney general would appeal the Monroe County decision. Bondi has not said whether she will defend Lee’s ruling in the Shaw case.
A Bondi spokeswoman on Friday declined to say why the office did not get involved in the Shaw case or if it will participate in the Shaw appeal, saying only that the office will “continue to monitor the case.”
Bondi’s appeal in Monroe County puts on hold that ruling, which applied only to that county.
Although that decision has no force of law in the rest of the state, lawyers for the Shaws say it may help their case for divorce equality.
“It’s not authoritative, but it provides a little bit more persuasion,” said Adam Cordover, who represents Keiba Lynn Shaw. “It shows that yet another court has ruled in favor of marriage equality. The currents of history are in favor of marriage and divorce equality.”
Cordover said the Monroe County ruling went further than the Shaws need the courts to go. “We believe, first off, that the court doesn’t even need to recognize the marriage in order to grant the divorce in our case. It simply needs to recognize that others do recognize the marriage.”
Cordover said the Shaws simply want to be legally declared as single.
The Monroe County judge “said that marriage is a fundamental right whether between one man and one woman or between two people of the same sex,” Cordover said. “We’re arguing the other side of the coin. Divorce is a fundamental right, whether it’s between one man and one woman or two people of the same sex.”
Brett Rahall, who represents Changamire Shaw, said he plans to mention the Monroe County case in his brief but doesn’t think it will have much influence. He sees the potential in the opposite — that the appellate ruling in the Shaw case could affect the appeal in the Monroe County case. “Whichever case gets there first is going to have an effect on all the other ones,” Rahall said.
Jason Palmer, who teaches law and sexuality at Stetson, said the rulings on same-sex marriage “have a cumulative effect. I think they do build on each other.”
Citing the Monroe County ruling in the Shaw appeal “shows the tide,” Palmer said. “It demonstrates that judges all across the country are hearing these cases and ruling that (same-sex marriage bans are) unconstitutional violations. Every decision puts another nail in these statutes or constitutional amendments that prohibit same-sex couples from getting married.”
Rahall said he has until July 30 to file his appellate brief, although he could seek an extension. After his brief is filed, Cordover has another 20 days to reply, as would the attorney general’s office should it decide to file a brief.
The Shaws lived in Massachusetts when they wed in 2010. They moved to Tampa in 2011. Although their marriage isn’t recognized by Florida, it is recognized by the federal government and in 19 states.
Without a divorce, the women are required to file their federal tax returns as married people. And if either one wants to remarry — even to a man — she could be prosecuted as a bigamist if she were to move to a state where their same-sex marriage is recognized. And if one of the women were traveling and became incapacitated while in a state where the marriage is recognized, then the other woman could legally make decisions for her even though the relationship is over.
“It’s been said that they’re wedlocked,” Cordover said. “They’re stuck together.”
Rahall said he doesn’t know why Bondi chose not to get involved in the Shaw case. “I didn’t win anyway, so what difference does it make?”
But Cordover said he wants the attorney general’s office to participate because without an opponent, they’re essentially shadow-boxing.
“In many ways we’re hoping the attorney general will intervene because it will be easier to make our arguments,” Cordover said. “We had to basically make assumptions about what the attorney general’s arguments would be because the parties are on the same side.” It would be easier, he said, if there was an assertion to which they could respond.
The women agreed to a “collaborative divorce,” a process in which both sides hire lawyers, but agree to settle all issues outside of court. That means they didn’t need a judge to divide their assets or establish alimony. They asked only for a legal declaration that their marriage was over.
“They just want to be divorced,” Cordover said.