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.