TAMPA — Although Attorney General Pam Bondi is officially opposed to a Tampa same-sex couple’s bid to divorce, the lawyers who work for her tried to avoid appearing before the 2nd District Court of Appeal to argue the state’s position on Monday.
State Solicitor General Allen Winsor filed a motion asking that the court postpone arguments on the case until after the U.S. Supreme Court decides cases being argued today in Washington over constitutional challenges to four other states’ bans on same sex marriages. Failing a postponement, Winsor requested that his office be excused from having to appear “to avoid expending unnecessary resources.”
Both requests were denied.
So Winsor made a personal appearance Monday morning before a three-judge panel, telling the court he had nothing to say other than to answer questions from the court. In total, Winsor spoke for less than two minutes.
The issue “at the heart of this case is before the United States Supreme Court, which will hear arguments tomorrow,” Winsor said Monday. “That’s where the answer will come.”
The solicitor general, appointed by the attorney general, oversees the state’s civil appeals and serves as a policy advisor to the attorney general.
Monday’s oral argument involved the case of Keiba Lynn Shaw and Mariama Changamire Shaw, a Tampa lesbian couple wed in Massachusetts who were denied a divorce in Hillsborough County. The judge in Hillsborough County said she was bound by state law and a voter-approved state Constitutional Amendment that bar recognition of same-sex marriages.
In asking courts to recognize their mutually agreed divorce terms, the Shaws have had to navigate a swirling, messy legal landscape with legal precedents being set on a regular basis, and the state of the law in continual flux.
Monday’s arguments were given on the eve of arguments in Washington regarding same-sex marriage before the nation’s highest court and three days after the 2nd District Court of Appeal - the same court, but different judges than heard the Shaw case - granted a divorce hearing to another lesbian couple from Lee County.
In the Lee County case, the 2nd DCA ordered that a divorce be considered for Danielle and Krista Brandon-Thomas. One half of that couple, Krista Brandon-Thomas, is contesting the divorce, so the appellate court sent the case back to Lee County for consideration on the merits.
The court found that the provision in the U.S. Constitution that requires states to respect each other’s judgements, the “full faith and credit clause,” requires the state to recognize the Brandon-Thomas’ marriage, which also was in Massachusetts. The court found that the state cannot enforce its own constitutional amendment barring recognition of same-sex marriages performed elsewhere.
Attorney Ellen Ware, representing Mariama Shaw, told the 2nd DCA on Monday that the Brandon-Thomas decision represents a “ground-breaking, expanded interpretation of the full faith and credit clause.” Ware said the parties “embrace” that decision but also wanted to point out that it wouldn’t help the same-sex couples who have been able to marry in Florida since January should any of them want to divorce.
Ware offered an alternative legal path, suggesting that the court rule for the Shaws’ divorce on the grounds that the 14th Amendment to the U.S. Constitution requires that citizens have equal access to the courts. “If anybody in Florida is allowed to divorce,” Ware said, “everybody is allowed to divorce.”
Chief Judge Craig Villanti, one of the three judges hearing the Shaw case, suggested that the state law prohibition on recognizing other state’s same-sex marriages doesn’t deny those couples access to courts because they could obtain divorces in the states they were married.
But Ware said Massachusetts has “cumbersome” restrictions for out-of-state couples wishing to divorce, making it extremely difficult for the Shaws to get divorced there. They would have to move to Massachusetts and live there for an extended waiting period first.
“You are not allowed to go to Massachusetts just to obtain a divorce,” said attorney Deborah L. Thomson, who represents Keiba Shaw.
Both Ware and Thomson agreed that the reasoning of the Brandon-Thomas decision applies to the Shaw case, requiring that they be granted a divorce.
Winsor urged the 2nd DCA to wait until the U.S. Supreme Court weighs in on the issue of same-sex marriages.
There are, he said, “two questions before the U.S. Supreme Court. The first is whether states must license same-sex marriage, whether the 14th amendment requires states to license same sex marriages, and the second is whether the 14th Amendment requires states that don’t license same sex marriages to recognize same-sex marriage licenses from other states. We believe the resolution of that latter question will guide this and all the other cases.”
Villanti questioned whether the outcome of the federal cases will determine the outcome of the Shaw case because the federal cases don’t involve any divorces.
“If the United State Supreme Court were to say that the court is obligated to recognize the marriage, then the trial court in this case was wrong,” Winsor said. “I think that before the end of June, at the very latest, we’ll have some significant guidance from the U.S. Supreme Court on this case and all the others that are in the Florida courts.”
“We’ll keep our fingers crossed,” Villanti responded.
The solicitor general works for Bondi, who delayed entering the Shaw case for months, even after twice being invited to defend the state’s same-sex marriage ban as it applies to the divorce petition. In September, four months after a judge denied the Shaws’ divorce, Bondi’s office announced it would enter the appeal, arguing that marriage is a public policy question that should be decided by the public, not the courts.
Lawyers for the Shaws were not given time to respond to Winsor’s assertions at the end of the court hearing Monday.
Ware said afterward that she wanted to tell the court that Winsor was wrong.
“It will only be decided by the Supreme Court if the Supreme Court strikes down the marriage bans” because then there would be no basis to deny divorces, Ware said. “If the Supreme Court does something else, everybody in Mariama’s situation still has a problem.”
Still, given the Brandon-Thomas decision, Ware said, she expects the Shaws “will be divorced shortly.”