TAMPA — A Hillsborough County judge postponed making a decision Thursday morning on whether a lesbian couple can divorce.
Circuit Judge Laurel M. Lee told attorneys representing the women to come back at a later date prepared to argue their positions on the case, which could challenge the state's ban on same-sex marriage.
Attorneys for Mariama Changamire Shaw, 47, and Keiba Lynn Shaw, 45, have reached a marital settlement agreement and wanted Judge Lee to grant the uncontested divorce. Mariama Changamire Shaw showed up for the hearing; Keiba Lynn Shaw did not.
Judge Lee asked the attorneys why she should grant the case, given that the Florida Constitution does not recognize same-sex marriage.
Attorney Ellen Ware, one of two lawyers representing Changamire Shaw, argued that the divorce does not violate the marriage ban since it would erase the marriage. But if the divorce is found to violate the marriage ban, then it should be granted because it violates the equal protection clause of the Florida and U.S. Constitutions. It violates the right to privacy, to marry, to travel, to migrate.
"We should not be as a state discouraging people from moving to Florida because once here they are forever married," Ware said. "Essentially by refusing to divorce people, we are telling them if they move here they are stuck."
Judge Lee asked a lot of questions about the marital settlement, but she said she was not prepared to rule yet.
"This is obviously a significant and important legal argument for your clients," Judge Lee said, "and one that I want you to have every opportunity to argue before the court."
The judge will hear the case at 10 a.m. on April 22.
The couple married four years ago in Massachusetts, where same-sex marriage is legal, but moved to Florida in 2011. They separated last October and Changamire Shaw, an adjunct professor at the University of Tampa, filed for divorce on Jan. 15.
The marital settlement agreement, part of a collaborative divorce proceeding, was worked out during two meetings in March. It calls for Keiba Lynn Shaw to give a lump sum payment to Mariama Changamire Shaw and outlines how the couple will not communicate with each other, except through their attorneys. The settlement agreement mentions a boy born in Haiti in 2009 — before the couple married — and adopted by Keiba Lynn Shaw, a physical therapist. The boy will remain with her.
On Monday, attorneys Brett Rahall and Ware submitted an argument to Attorney General Pam Bondi, anticipating that the divorce might not be granted and that they would have to appeal.
This would make it likely the first divorce to challenge Florida's same-sex marriage ban. A lawsuit filed Jan. 21 by six couples in South Florida who want to wed also seeks to overturn the ban.
At the end of the hearing, Changamire Shaw's attorneys told her the fact that the judge was considering the case was a positive development. "A lot of other people are depending on the outcome of this to help their lives," Rahall told her.
Changamire Shaw, who remained quiet throughout the proceedings, said simply: "It sounds promising."
Leonora LaPeter Anton can be reached at [email protected] or (727)893-8640.