Same-Sex Divorce: Stufflebeam Appeal Decided

Due to the holiday, I neglected to bring you news of the Third District Court of Appeal's decision resolving the Oliver v. Stufflebeam case, which I've previously discussed. The question in Stufflebeam was whether a Florida trial court could dissolve the out-of-state same sex union of two women who were validly married in Iowa. 

On the eve of Christmas, the court held "no"—Section 741.212, which provides that same sex marriages "are not recognized for any purpose in this state," barred the divorce. 

The court began by noting that the parties had formulated their appeal as a question of statutory interpretation, not one of the constitutional validity of the statute. Thus, the parties had argued that Section 741.212 should be read to permit same-sex divorce, since, in their view, a trial court was not required to "recognize" a marriage in order to dissolve it.

From there, it was a simple matter of holding that "Where there is no valid marriage there can be no divorce." 

The court did note, however, that its decision did not prejudice the rights of the parties to seek an annulment in the trial court. An annulment, unlike a divorce, does not necessarily "recognize" a marriage. The court noted that "a court need not recognize as valid a marriage which is valid in the jurisdiction where consummated where recognition would affront the public policy of the forum state."

It’s interesting to note the court’s dismissal of the parties’ statutory interpretation argument that the court should read the statute in their favor—so as not to forbid same-sex divorce—in order to avoid constitutional concerns. Of that argument, the court wrote:

This position is legally puzzling. It would be a disingenuous court indeed that would “avoid” an issue to reach a particular result. We have no difficulty deciding a constitutional issue when properly raised. The parties did not raise the constitutionality of the statute either before this court or the trial court; thus, we do not reach any constitutional issues here.

See n.1.

That is simply wrong. The Florida Supreme Court has called it a "settled principle" that "[w]hen two constructions of a statute are possible, one of which is of questionable constitutionality, the statute must be construed so as to avoid any violation of the constitution." State v. Presidential Women's Center, 937 So. 2d 114, 116 (Fla. 2006); see also Arthur Young & Co. v. Mariner Corp., 630 So. 2d 1199, 1203 n.5 (Fla. 4th DCA 1994). The parties had fully briefed this issue. Although they did not ask the court to invalidate the law on equal protection or due process grounds, they did argue that interpreting the statute to preclude the relief they sought would raise those constitutional concerns, and therefore the court should read the statute more narrowly. 

A party need not challenge the constitutional validity of a statute in order to raise this canon of construction. It is enough that the party apprise the court of the potential for constitutional concerns, should it adopt the opposite interpretation of the statute.