Florida Same-Sex Married Couples Denied Right to Divorce
Well, it’s official, same-sex married couples seeking divorces in Florida can’t yet do that. Although we are all familiar with the numerous state and federal court opinions striking down Florida’s constitutional prohibition against same-sex marriage, an interesting development has occurred that wasn’t anticipated by the proponents of that constitutional measure.
Although Florida’s constitutional amendment prohibits same-sex marriage, it doesn’t really address same-sex divorces. That issue recently came up in Hillsborough County when Circuit Court Judge Lee declined to exercise jurisdiction over a same-sex divorce on the basis of Florida’s constitutional prohibition on same-sex marriage. The order of dismissal indicated Judge Lee did not believe there was “jurisdiction to dissolve that which does not exist under law.”
The Florida 2nd District Court of Appeal issued its August 27, 2014 per curiam En Banc opinion in the case of Shaw vs. Shaw. Therein, the opinion cites the numerous Florida decisions in which the same-sex marriage ban was held unconstitutional. However, because this issue is one of urgent importance, the opinion invoked a little-known rule of appellate procedure in which a District Court of Appeal can decline to issue a ruling on the appeal issue and instead pass it on to the Florida Supreme Court as being one of great importance to the public that needs to be addressed immediately. The justices appear to be of the opinion that issuing a decision one way or the other on whether the prohibition on same-sex marriage includes a prohibition on getting divorced would simply delay these issues and that the Florida Supreme Court needed to address the issue immediately.
Of interest, this issue raises an interesting point of why would a prohibition on one type of marriage equate to a prohibition on ending that marriage. As an example, marriages between two 13-year-olds would not be recognized in Florida, but if such a marriage were legal in a different country and the married couple subsequently moved to Florida and ended up filing for divorce, would that prevent a Florida court from exercising jurisdiction and granting the divorce? I think not. Therefore, there is now another attack against the prohibition on same-sex marriage that deals with due process and Florida’s constitutional right to access the courts.
Because this issue is one of such great importance to the citizens of this state, it is hoped that the Florida Supreme Court accepts this certification and immediately orders the parties to start the briefing process. No doubt, the same organizations that oppose and are in favor of same-sex marriages will put in their two cents worth. However, the final arbiter of this issue is going to be the Florida Supreme Court. Even the federal judge that has ruled the amendment to be unconstitutional has stayed the effect of his ruling until the Supreme Court of Florida issues a decision. Given the multitude of similar rulings throughout this country, there is no doubt that Florida’s prohibition on same-sex marriages is going to eventually be thrown out as unconstitutional.
Image courtesy of freedigitalphotos.net by Boykung