The basic facts: Sarah Oliver and Heather Stufflebeam got married in Iowa, where same-sex marriage is legal. They then moved to Florida. Sometime after that, they didn't want to be married anymore. The trial court denied their request for dissolution.
I'll try to get my hands on the briefs in the case. But based on the argument, it appears that the appellant is not challenging the constitutionality of Florida's same-sex marriage ban. (Other Florida cases raise that issue). The appellant simply argues that the same-sex ban does not bar Florida courts from dissolving same-sex marriages. (Appellee agrees; both parties are seeking the divorce).
The relevant statutory provision, Section 741.212(1), states:
(my emphasis). That same statute goes on to forbid same-sex marriage in Florida. See Section 741.212(3). The text of the statute says nothing about "divorce." It's simply a "no-Full-Faith-and-Credit" provision for foreign same-sex marriages. The question, then, is whether a court "recognizes" a same-sex marriage by dissolving it. I think the intuitive answer is "No."
The relevant statutory provision, Section 741.212(1), states:
Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
(my emphasis). That same statute goes on to forbid same-sex marriage in Florida. See Section 741.212(3). The text of the statute says nothing about "divorce." It's simply a "no-Full-Faith-and-Credit" provision for foreign same-sex marriages. The question, then, is whether a court "recognizes" a same-sex marriage by dissolving it. I think the intuitive answer is "No."
Part of the appellant's argument is that the dissolution does not implicate any of the "benefits of marriage." If it did, Florida law would likely not permit the dissolution. (Or so I gather from the argument; I don't know what provision of Florida law talks about "benefits"). At argument, Judge Rothenberg and appellant's counsel had an exchange during which counsel argued that divorce is not a benefit of marriage; Judge Rothenberg disagreed. On one hand, divorce doesn't sound much like a "benefit"; it's just a failed marriage. On the other, a couple that divorces gets the "benefit" of a public forum for resolution of its very private dispute. So, for instance, a court will divvy up property, award alimony and child support, etc. The court is an arbiter, and perhaps it's fair to say that the parties receive the benefit of an arbiter's decisions.
Another potential problem with the parties' position is that it would require a trial court to evaluate a same-sex marriage to determine whether it is "irretrievably broken." That act might constitute a recognition of the marriage.
A collateral, procedural wrinkle in the case is whether the court can reach the constitutional issues, assuming it rejects the parties' statutory interpretation. My reading of the procedural posture is that the parties waived the constitutional arguments. In arguing to the contrary, Appellee pointed out during argument that the briefs say that a contrary statutory interpretation would raise constitutional concerns; but that isn't the same as saying that a statute is in fact unconstitutional. Rather, the parties simply supported their statutory argument by raising the canon of constitutional avoidance.
Below, the trial court apparently refused to entertain the parties' constitutional arguments. But the parties did not request review of that decision.
A final note: There was apparently no amicus in the case who argued against jurisdiction. That position is completely unrepresented. Which means that the court is charged with crafting those arguments itself. The Florida Rules of Appellate Procedure do not contain a provision allowing a court to appoint amici. I'm not aware of any Supreme Court rule that allows SCOTUS to appoint amici, but that Court sometimes does appoint counsel to represent an unrepresented position. See The Affordable Care Act Cases (SCOTUS appointed Robert Long to argue that the litigation was precluded by the Anti-Injunction Act).
Another potential problem with the parties' position is that it would require a trial court to evaluate a same-sex marriage to determine whether it is "irretrievably broken." That act might constitute a recognition of the marriage.
A collateral, procedural wrinkle in the case is whether the court can reach the constitutional issues, assuming it rejects the parties' statutory interpretation. My reading of the procedural posture is that the parties waived the constitutional arguments. In arguing to the contrary, Appellee pointed out during argument that the briefs say that a contrary statutory interpretation would raise constitutional concerns; but that isn't the same as saying that a statute is in fact unconstitutional. Rather, the parties simply supported their statutory argument by raising the canon of constitutional avoidance.
Below, the trial court apparently refused to entertain the parties' constitutional arguments. But the parties did not request review of that decision.
A final note: There was apparently no amicus in the case who argued against jurisdiction. That position is completely unrepresented. Which means that the court is charged with crafting those arguments itself. The Florida Rules of Appellate Procedure do not contain a provision allowing a court to appoint amici. I'm not aware of any Supreme Court rule that allows SCOTUS to appoint amici, but that Court sometimes does appoint counsel to represent an unrepresented position. See The Affordable Care Act Cases (SCOTUS appointed Robert Long to argue that the litigation was precluded by the Anti-Injunction Act).
No comments:
Post a Comment