Martin Dyckman: Same-sex divorce too hot to handle for many Florida judges

Every judge gets a robe and a gavel. Until now, it has not been thought necessary to include barbecue mitts in the kit.

But it seems some judges need them.

Consider the hot-potato handling in the Tampa divorce case of Mariama Monique Changamire Shaw vs. Keiba Lynn Shaw.

Married legally in Massachusetts in 2010, they moved to Florida in 2011 and separated in 2013.

After Changamire Shaw filed for divorce, the women reached a settlement agreement that included provisions for a child Keiba Shaw had adopted before the marriage.

In other words, it was a “collaborative” divorce case, of the sort that Florida courts routinely ratify every day.

Except, of course, in one obvious aspect. Florida’s Constitution was amended by initiative in 2008 to say that only male-female marriages “shall be valid or recognized.” There was already a law explicitly stating that same-sex marriages that would be legal elsewhere “are not recognized for any purpose in this state.”

So the plaintiff’s attorney notified Attorney General Pam Bondi that both Shaws would challenge the law.

Bondi has been notably — some say notoriously — zealous in defending “traditional marriage.” But she sent no one to intervene in the Shaw case, where the question is narrower than whether Florida should license gay marriages.

Even Bondi could see why meddling in Shaw v. Shaw would be a lost cause.

One reason is that the U.S. Constitution requires each state to give “full faith and credit” to the laws of other states.

Another is the U.S. Supreme Court’s 5-4 decision last year requiring the federal government to recognize same-sex marriages from the 17 states that presently allow them.

But Hillsborough Circuit Judge Laurel M. Lee refused to consider those issues.

Lee, a relative rookie on the bench, said she had “no jurisdiction to dissolve that which does not exist under law.”

The marriage does exist under law — Massachusetts law. But Lee couldn’t be troubled by what the U.S. Constitution says in that regard.

That was the first hot-potato toss.

As Lee no doubt expected, Changamire Shaw appealed to the Second District Court of Appeal at Lakeland.

The next hot-potato toss came there. The court voted 10-3 to pitch it directly to the Florida Supreme Court.

The majority noted that both Shaws were asking for “immediate resolution” in Tallahassee. They remarked also that a circuit judge in Broward County, accepting the responsibility that Lee had shirked, had granted a same-sex divorce on Aug. 3. He stayed his ruling pending appeal.

Bondi didn’t appeal. So that divorce will take place any day now, but the precedent would apply only in Broward. That could be why Bondi let it be.

At Lakeland, Chris Altenbernd, the senior judge and a highly regarded legal scholar, chided the majority’s position that the Supreme Court would have to rule eventually, so why not now?

“Given that same-sex marriages are a recent development in other states, I am not convinced that Florida courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution,” Altenbernd wrote in dissent.

The district court could and should handle it, he reasoned, especially since there’s no actual controversy in a legal sense. The Shaws agree and no one has defended the Florida law as it applies to their case.

No one, that is, except for Lee, whose husband, a prominent Republican state senator, must be wishing that another judge had gotten the luck of the draw.

Altenbernd noted that his court and the other four districts routinely take on cases of “great public importance” and don’t certify them to Tallahassee until “after we have issued a reasoned decision.”

Yes, he said, divorce appeals “take too long in many cases.” Yet the district court often takes time with them “even when the rights of children are at stake.”

Moreover, a Second District decision in the Shaw case would become the last word statewide unless another district court disagreed with it. In that event, the Supreme Court would never need to consider it.

Barely a week after the Supreme Court got the Second District’s hot potato, it tossed it right back. “Do your job,” it said in effect. The brief order, signed by all seven justices, cited Altenbernd’s dissent.

More than 30 courts around Florida and the nation have dealt straightforwardly with gay marriage when the cases came to them.

So now that the hot potato is back in Lakeland, that court will have to deal with it too. And in time –not too much time, one hopes –Judge Lee will have to do what she should have done months ago: grant the divorce.

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.

Martin Dyckman


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