The Latest Florida Same-Sex Divorce Ruling: Punting To The Florida Supreme Court

Shaw v. Shaw is the latest in a string of Florida same-sex marriage rulings. See No. 2D14-2384, 2014 WL 4212771 (Fla. 2d DCA Aug. 27, 2014) (click here for the slip opinion).  Shaw was decided by the en banc Second District Court of Appeal and deals with whether the Florida ban on same-sex marriage prohibits a circuit court from dissolving a Massachusetts same-sex marriage. (The case parallels the Third District case Stufflebeam, which I've reported on elsewhere). 

In brief, here's the posture of the case. The parties--two women--were married in Massachusetts  in 2010. After relocating to Florida, the couple filed for divorce in January 2014, citing irreconcilable differences. They "voluntarily entered into a collaborative marital settlement agreement," but the Florida circuit court refused to dissolve the marriage because the court lacked "jurisdiction to dissolve that which does not exist under law." As in Stufflebeam, the parties appealed that order. After filing her appeal, the appellant moved under Fla. R. App. P. 9.125 for the Second District to certify the issue as requiring "immediate resolution by the supreme court." (This provision provides for pass-through jurisdiction).

The Second District's 10-3 majority in Shaw agreed that the issue should be certified to the Florida Supreme Court, and therefore did not decide the issue itself.

The three-judge dissent is ultimately a lot more interesting than the majority opinion. Here are the significant tidbits:

First, the dissent points out in a footnote that "[p]ermitting such divorces would be a relatively minor adjustment to Florida law that would be largely compatible with the policy behind the rest of these Florida provisions." The court thus does not believe that Florida's justifications for banning same-sex marriage extend to same-sex divorce. This bolsters the point about animus that I recently made: If the Florida ban is construed to also prohibit divorce, that suggests that the ban is motivated more by animus than any rational basis.

Second, the dissent points out that the Florida Attorney General has yet to take a position in these cases. Op. at *4 (Altenbernd, J., dissenting)("The Attorney General has made no appearance in this case, and we do not know whether the Attorney General will argue that Florida law constitutionally prohibits these Florida residents from obtaining a divorce."); see also id. at *3 ("The Attorney General did not file an appearance, and no one argued in support of the legal provisions."). 

Third, the dissent would have resolved the issue, rather than certifying it, and implied that a ban on out-of-state same-sex dissolution would violate the Full Faith and Credit Clause of the U.S. Constitution:

It is important to understand that the issue in this case is not whether Florida is constitutionally compelled to marry same-sex couples. Even if the United States Supreme Court ultimately holds that Florida can reserve the rights and privileges of civil marriage in Florida to heterosexual couples, many other states have already legalized such same-sex marriages. Although the parties argued broader issues to the circuit court, the narrow, dispositive issue in this case is whether Florida, under the Full Faith and Credit Clause of the U.S. Constitution, must give credit to these lawful out-of-state marriages for the purpose of dissolution. Presumably, this issue is comparable to the question of whether, after January 1, 1968, Florida was required to give such credit to lawful, out-of-state common law marriages. See § 741.211, Fla. Stat. (2013); Johnson v. Lincoln Square Props., Inc., 571 So. 2d 541, 543 (Fla. 2d DCA 1990) (requiring a trial court to give full faith and credit to an out-of-state common law marriage in a claim for consortium); Compagnoni v. Compagnoni, 591 So. 2d 1080, 1081–82 (Fla. 3d DCA 1991) (requiring a trial court to recognize out-of-state common law marriage when distributing assets in a divorce proceeding); Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. 1st DCA 1991) (requiring a trial court to give credit to a Georgia common-law marriage in a dissolution proceeding).

Now, if I were the Florida Supreme Court I'd want no part in deciding this issue by pass-through jurisdiction. Consider that not a single Florida appellate court has currently addressed the issue of same-sex divorce or marriage. This means that the high court won't have any guidance on potential resolutions to the case. (Those potential resolutions are numerous. Not only do these cases implicate constitutional concerns--which are apparently threefold and include equal protection, due process, and full faith and credit--but they could also be decided on statutory interpretation grounds, since the court might very well rule that the text of the Florida ban does not cover dissolution). This is not to mention that in both Shaw and Stufflebeam only one side of the dispute was briefed because the AG hasn't felt the urge to weigh in. 

Percolation is an important phenomenon, as this article discusses. The Florida Supreme Court currently has the benefit of zero percolation on this important issue, a fact which could show in its decision should it decide to accept pass-through jurisdiction. 

Will the court choose a speedy-resolution or an accurate resolution?

As always, this blog will keep you apprised of same-sex appellate issues occurring in the great State of Florida. 

What A Ban On Gay Divorce Means For Equal Protection Animus

The Third District Court of Appeal has still not rendered its decision in the Oliver v. Stufflebeam case, which asks whether Florida's ban on the recognition of same-sex marriage (Section 741.212(1)) also forbids a court from dissolving a same-sex marriage entered into in another state. But it's not too early to start thinking about what such a decision might mean for a later court's equal protection animus analysis. And considering that Federal District Court Judge Hinkle's ruling striking down Florida's same-sex marriage ban will be heading to the Eleventh Circuit soon, the time is particularly ripe.

Questions about animus have become part and parcel of the Supreme Court's recent equal protection rulings on hot topic issues like sodomy and same-sex marriage. In Romer v. Evans, for instance, Justice Kennedy wrote that Colorado's Amendment 2--which prohibited Colorado localities from providing special protections to any person based on sexual orientation--violated equal protection because "[i]ts sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests." 

So then, what does it say about Florida's animus towards gays and lesbians if it prohibits not only their marriage, but also their divorce? I haven't looked much into Florida's particularized reasons for not permitting same-sex marriage. I assume it's for the usual reasons: Protecting traditional marriage, protecting children from the devastating effect of having two daddies, etc. How does a ban on same-sex divorce fit into this mission?

I think it's pretty obvious that it doesn't. In fact, it's actually contrary to Florida's objectives: If Florida doesn't want to permit same-sex marriage, it would make more sense to prohibit marriages but allow such divorces. By pretending that out-of-state marriages simply don't exist, Florida sends the message that it doesn't want to touch those marriages with a ten-foot pole; not even to dissolve them. After all, it would be an easy enough thing for Florida to craft a law that would still permit a court to rule out-of-state marriage void ab initio in Florida, or even to flat out permit their dissolution. Alternatively, a Florida court could very easily read Section 741.212(1) to permit same-sex divorce (through the void ab initio option) since it's not at all clear that ruling a marriage void ab initio would require ever recognizing the marriage.

If Florida courts won't adopt this reasonable reading of Florida's ban, it suggests that Florida doesn't want to get its hands dirty with anything having to do with same-sex marriage. There's an open question about whether a court's potentially incorrect reading of a statute can be used to attribute animus to the legislature/people of Florida. 

As I mentioned above, we don't know yet whether Florida's same-sex prohibition extends also to same-sex divorce. But be assured that if it does, LGBTQ advocates will seize on that fact both in the Eleventh Circuit and in the Supreme Court, if they get that chance.

(I think this particular animus point is much more potent in the Eleventh Circuit. It pertains only to animus in Florida, and therefore would be nearly useless to the Supreme Court--if the Court takes a gay marriage case this Term, it will take a case with national implications, and not another case like Hollingsworth, which was limited to California.)

State Files Its Brief In Debaun, The What-Is-Sexual-Intercourse Case

Here is the State's answer brief in Debaun, the Florida Supreme Court case that asks whether anal intercourse is covered by Florida's prohibition on engaging in "sexual intercourse" without informing your partner that you have HIV.

Apologizing For Originalism

When debating the merits of originalism as a theory of constitutional interpretation, it's all the rage to talk about whether originalism can support the decisions in canonical cases like Brown and Loving. Thus, in a recent VC post Ilya Somin discusses the debate about whether the original meaning of the Fourteenth Amendment bans anti-miscegenation laws. Somin says that "the debate over whether such laws are compatible with originalism has broader significance for the debate over originalism itself." See also Professor Calabresi's article offering originalist justifications for Brown. 

In the views of so many, it matters whether originalism can lead to the same positive outcomes. But I don't see how it does. So far as I can tell, the greatest benefit of originalism is that it's tied to some concrete, substantial, and, most importantly, predictable method of deciding constitutional disputes. As Scalia is always saying, originalism helps to remove from the judge's hands the outcome of a case. That way, the outcome is (at least ostensibly) less driven by the outcome the judge desires.

Why, then, do we judge originalism based on the results it could or could not have produced? 

That whole line of inquiry is a red herring. If originalists cared what outcomes their interpretational theory produced, they wouldn't be originalists--they'd be functionalists. By even having these could-originalism-have-produced-Brown? debates, originalists lend credence to that mode of thinking.

Originalists will have to content themselves with the belief that their theory is correct because it leads to settled, predictable outcomes, even when those outcomes are not particularly palatable. For everything else, there's democracy. 

My Very Busy Appellate Argument Week

Over the span of seven days (beginning last Thursday), I will have presented three appellate arguments and one argument in trial court in favor of re-sentencing. This is probably a problem unique to government lawyers.

Concurring Opinions Commanding A Majority Of The Court

When a concurring opinion commands a majority of the votes on a court, does its rule constitute a holding?

In Matarranz v. State, 133 So. 3d 473 (Fla. 2013), which is quickly becoming a seminal jury selection case in Florida, the Florida Supreme Court ruled 5-2 that a juror should have been stricken for cause based on her negative life experience with burglary, the crime at issue in the case. The Court held that there are two types of juror bias: (1) Those based on a misunderstanding of law, which of course can be rehabilitated; and (2) those based on life experience, which cannot be rehabilitated. Justice Lewis wrote the majority opinion and was joined by Justices Labarga, Quince, Pariente, and Perry.

Apart from the majority opinion, Justice Labarga filed a concurring opinion. In that opinion, he wrote that "Indeed, I would take the majority opinion one step further and hold that where a juror's expressed reservations about his or her ability to be fair and impartial arise from the juror's personal experience, true 'rehabilitation' of that juror is not possible." At 491. (It is unclear how this differs from the majority opinion. The majority stats that "When a juror expresses his or her unease and reservations based upon actual life experiences, as opposed to stating such attitudes in response to vague or academic questioning, it is not appropriate for the trial court to attempt to 'rehabilitate' a juror into rejection of those expressions--as happened here." That sounds identical to Justice Labarga's rule. But Justice Labarga obviously believed there was some difference in these rules. One explanation of the distinction is that the majority says rehabilitation by the trial court is impermissible, whereas the concurrence may also bar rehabilitation by the parties.)

Here's the rub: Justice Labarga's concurrence was joined by Justices Pariente, Perry, and remarkably enough, Perry--the author of the majority opinion. So which rule is the law?

The Florida Supreme Court has explained that "Under the Florida Constitution, both a binding decision and a binding precedential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision." Santos v. State, 729 So. 2d 838, 840 (Fla. 1994). So any opinion that commands the votes of four Justices--including Justice Labarga's Matarranz concurrence--is a rule of law.

(Note, however, that Santos did not deal with a case where there was a single, clear majority opinion. It instead interpreted the rule from a case that contained a plurality opinion and a concurrence. So the outcome is potentially different in a case that purported to have a majority opinion and also contained a majority-concurrence.)

UPDATE: Here's a Florida case clarifying that a concurring opinion that garners the support of a majority of the court constitutes "law": Miami-Dade Cnty. v. Associated Aviation Underwriters, 983 So. 2d 618, 620 (Fla. 3d DCA 2008) ("Generally, a concurring or a special concurring opinion does not constitute law of the case. It is just one judge expressing his or her particular view of the case. But, where that special concurring opinion, or an issue in that special concurring opinion, is joined by a majority of the court , it does constitute law of the case as to that specific issue. See Greene v. Massey, 384 So.2d 24 (Fla.1980); Lendsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960).").

Certworthiness As A Legal Proposition, Part 2

Back in April, I blogged about a tactic SCOTUS advocate Jeff Fisher employed in his Wurie cert petition: Treating certworthiness as a legal proposition by citing to cases where the Court did grant cert. Today's "Petition of the Day" over at SCOTUSBlog features a similar example of certworthiness as a legal proposition.

Check out footnote 1 of the petition in Khan v. Chowdhury, where the question is whether, after one of the claims in a case is set aside after the verdict, the court must also vacate the jury's general verdict. Petitioner argues that the case presents a clean vehicle for the resolution of the issue. Footnote 1 reads:

Thus, this petition is distinguishable from recent petitions raising this issue, which were denied. For instance, the Court denied a petition challenging the Fourth Circuit’s decision in Shandong Linglong, supra, at 12. But in that case, the Brief in Opposition argued that the case involved a special verdict, and “this special verdict case is not a suitable vehicle for resolving any purported conflict regarding whether and how courts apply the harmless error rule to general verdicts.” Brief For Respondent In Opposition at 14, Shandong Linglong Rubber Co., Ltd. v. Tire Engineering & Distribution, LLC, 133 S. Ct. 846 (2013) (No. 12-444), 2012 WL 8969035. Similarly, this Court denied a petition challenging the Sixth Circuit’s decision in Frankenmuth, supra, at 9. In that case, however, the Brief in Opposition primarily contended that the case was a poor vehicle because both theories that were submitted to the jury were invalid. See Brief For Respondent In Opposition at 8, Loesel v. City of Frankenmuth, 133 S. Ct. 878 (2013) (No. 12-563), 2012 WL 6204242 (“This case does not warrant the Court’s review. Above all, it is an exceptionally poor vehicle for addressing the question petitioners present because the only remaining ‘factual basis’ for the city’s liability should never have reached the jury.”). Because there is no question that the verdict form did not distinguish between the TVPA and the ATS claim, and because Petitioner is not challenging the TVPA verdict in this Court, there is no possibility that these vehicle problems could arise here.

Pet. at 15 n.1.

Petitioner obviously felt that these other cert denials were fresh enough in the Court’s mind that they had to be addressed. I don’t have enough data to know whether this is an effective strategy. Here are my speculative thoughts anyways.

It’s hard to imagine that the Court’s institutional memory for this sort of thing is so strong that Justice Kennedy will be reading a cert recommendation from his law clerk and think, “Well gee, we just denied on a similar issue last year, so let’s deny this one too.” Probably not how it works. But, the petition does deal with the ATS. After Kiobel, it's a pretty hot topic. So the Petitioner might think that the Court is paying particularly close attention to ATS issues. (Although, from my quick reading of the petition, this isn't a Kiobel-related issue; the result in Kiobel was merely necessary to the verdict in this case, but not relevant to the particular issue now being raised).

MOreover, while the footnote might have been targeted at the clerks (since they’re the first level of petition-review), the clerks who read the prior petitions will almost certainly not be the same clerks who read this petition.

Either way, why not let the Respondent raise this issue first, at which point Petitioner can deal with it in the reply? So I don't think that this tactic played out as nicely here as it did in Wurie.