Florida High Court Asked to Weigh Gay Marriage | Courthouse News Service
Thursday, November 30, 2023
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Florida High Court Asked to Weigh Gay Marriage

(CN) - The Florida Supreme Court must resolve the conflict over the constitutionality of same-sex marriage in the Sunshine State, an en banc appeals court ruled Wednesday.

At least four Florida courts have handed down conflicting rulings on the issue, leaving same-sex couples who were married out of the state, as well as Florida family lawyers, confused about the status of the marriages, according to the 10-page ruling. The conflict assures that couples will be treated differently in different parts of the state, until the high court sets the record straight.

In the latest of a recent spate of rulings addressing the issue, the 2nd District Court of Appeals in Lakeland presided over the decision of Hillsborough County Circuit Court Judge Laurel Lee to refuse a divorce petition filed by a same-sex couple married in Massachusetts.

Judge Lee asserted that, since a Florida law expressly declares that same-sex marriages will not be recognized in Florida, the Massachusetts marriage, even though lawful in that state, does not exist under Florida law. The circuit court had no jurisdiction to dissolve a nonexistent marriage, she concluded.

Both parties in the divorce proceeding, Mariama M. Changamire Shaw and Keiba

Lynn Shaw, agreed that the state Supreme Court should address the issue to avoid uneven adjudication of divorce petitions brought by same-sex couples in different parts of the state.

The Family Law Section of the Florida Bar and the Florida Chapter of the American Academy of Matrimonial Lawyers have both asked to file amicus briefs in the appeal, arguing that the Lee's ruling denies access to Florida courts to same-sex couples who validly married in other states but are now living in Florida. They said the conflict among state courts has left family lawyers uncertain about a key legal issue in their area of practice.

Indeed, three other courts in the state have handed down rulings this summer that contradict Judge Lee's decision, upholding Florida's law banning same-sex marriages. The Broward County Circuit Court declared the law unconstitutional on Aug. 4, and two state appellate panels ruled likewise in July decisions concerning gay couples who were denied marriage licenses in Monroe and Miami-Dade Counties,

In ruling from the 2nd District on Wednesday, 10 judges on the appeals court voted to certify the case as requiring immediate resolution by the state Supreme Court.

Three judges asserted in dissent that the district court should decide the issue for itself instead of passing it onto the Supreme Court.

"This court and all of the other district courts consider countless questions of great public importance," Judge Chris Altenbernd wrote for the dissenters. "A select few of those questions we certify to the supreme court after we have issued a reasoned decision."

Sorting out the appeal of Judge Lee's ruling "does not seem to me to be one that this court cannot handle," he said.

"Given that same-sex marriages are a recent development in other states, I am not convinced that Florida's courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution," Altenbernd added. "I cannot certify that this order will have 'a great effect on the proper administration of justice throughout the state' requiring immediate review in the Supreme Court."

The 10-judge majority disagreed. "Although the dissent correctly notes that the district courts of appeal are capable of resolving constitutional questions, the dissent oversimplifies the issue in this case and underestimates its public importance and the effect that delay will have on the proper administration of justice," the unsigned majority opinion states.

Resolution by the state Supreme Court is a near certainty, in any case, the majority noted.

"If the trial court's ruling were to be upheld by this court, the parties' only options to achieve dissolution would be to seek review by the Florida Supreme Court or to begin the lengthy process of establishing residency in a state that will exercise jurisdiction over a same-sex marriage," the judges wrote.

"In any event, because of the constitutional implications the issue will likely be addressed by the Florida Supreme Court regardless of any decision we might make," they added.

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