IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT. Appellant, Case No. 3D v. L.T. Case No CA 24

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1 STATE OF FLORIDA, IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT Appellant, v. L.T. Case No CA 24 CATHERINA PARETO, et al., Appellees. / STATE OF FLORIDA, Appellant, Case No. 3D v. L.T. Case No CA-305-K AARON R. HUNTSMAN, et al., Appellees. / STATE OF FLORIDA S SUPPLEMENTAL RESPONSE IN SUPPORT OF PASS-THROUGH CERTIFICATION The sole issue on appeal is whether the Fourteenth Amendment to the United States Constitution requires states to allow same-sex marriage. That is unquestionably an important issue, and the Plaintiffs, the State, and all citizens deserve a definitive answer. Until recently, the issue was squarely before the United States Supreme Court, and it appeared that a definitive answer was coming. Several certiorari petitions from several states asked that Court to take up the issue and rule.

2 Even those who had prevailed below sought Supreme Court review. 1 The United States Supreme Court had the opportunity to answer the question with a decision binding on all citizens. That decision had there been one would have ended these cases and all others like it. Unfortunately, the United States Supreme Court decided not to answer the question. Last Monday, it denied the pending certiorari petitions. See Order List, 574 U.S. (Oct. 6, 2014). The Supreme Court therefore appears unlikely to provide finality on this critical issue in the immediate future. Florida s courts will therefore need to resolve the issue without further United States Supreme Court guidance. Because there are cases pending in multiple districts, and because this is an issue of great public importance that now warrants immediate Florida Supreme Court review, the State respectfully suggests passthrough certification. 1 See, e.g., Brief for Respondent at 3, Rainey v. Bostic, No (U.S.) (arguing that despite Respondent s victory below, the Court should nevertheless grant the petition for certiorari because this case presents a question of exceptional importance that is currently being litigated in state and federal courts across the country ). 2

3 I. These two consolidated appeals followed two trial court decisions invalidating Florida s marriage laws. The State intervened in both cases to defend Florida s laws. The decisions below are stayed pending appeal. After the State appealed, Plaintiffs suggested that immediate Florida Supreme Court review was necessary to bring finality to this issue on a statewide basis. Suggestion at 3. The State responded that because the United States Supreme Court was poised to resolve the issue, there was no immediate need for Florida Supreme Court review. Response at 11. This Court neither granted nor denied the suggestion; it entered an order stating that the pass-through suggestion would be carried with the case. In light of changed circumstances, the State respectfully requests that the Court act on the suggestion now and certify pass-through jurisdiction. II. Although this Court routinely handles important constitutional questions and is equipped to do so, this particular issue now requires a prompt Florida Supreme Court decision. There are appeals pending in other districts raising the constitutionality of Florida s marriage laws in different contexts. See, e.g., Shaw v. Shaw, Case No. 2D (Fla. 2d DCA) (challenging inability of same-sex couple 3

4 married in other state to obtain marriage dissolution in Florida); 2 Dousset v. Florida Atlantic University, Case No. 4D (Fla. 4th DCA) (challenging university decision denying same-sex spouse in-state tuition based on Florida law precluding recognition of same-sex marriage). And other lower-court decisions have prompted uncertainty and confusion. III. To be sure, only the rare case meets the threshold for pass-through certification. See State v. Adkins, 71 So. 3d 184, 186 n.1 (Fla. 2d DCA 2011); Fla. Dep t of Agr. & Consumer Servs. v. Haire, 832 So. 2d 778, 781 (Fla. 4th DCA 2002). But the United States Supreme Court s recent inaction makes this that rare case. To date, no appellate court in Florida has ruled on the important issue this case presents. Florida s citizens need a definitive answer, and they need it sooner rather 2 In a divided decision, the en banc Second District certified Shaw for passthrough. The Florida Supreme Court declined immediate review for the reasons set forth in Judge Altenbernd s dissent. Shaw v. Shaw, SC (Fla. Sept. 5, 2014). That dissent noted that (i) the State was not a party in that case, (ii) the issue there was not whether Florida is constitutionally compelled to marry same-sex couples, and (iii) the order on appeal contain[ed] no reasoning as to the issue on appeal. Shaw v. Shaw, -- So. 3d --, 2014 WL , at *4-5 (Fla. 2d DCA Aug. 27, 2014) (Altenbernd, J., dissenting); see also id. at *5 ( This issue, unlike the constitutionality of the ban on same sex marriage, may never require the attention of the supreme court. ). Those factors distinguish this case from Shaw, and the Florida Supreme Court s order in Shaw does not suggest it would decline jurisdiction in this case. 4

5 than later. The State of Florida therefore respectfully asks that this Court grant the suggestion and certify these cases for immediate Florida Supreme Court review. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ Allen Winsor ALLEN WINSOR Florida Bar No Solicitor General ADAM S. TANENBAUM Florida Bar No Chief Deputy Solicitor General Office of the Attorney General The Capitol PL01 Tallahassee, Florida Telephone: (850) Facsimile: (850)

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of October, 2014, a true copy of the foregoing was furnished via to counsel of record at the addresses indicated on the attached service list, constituting compliance with Florida Rule of Judicial Administration 2.516(b) and Florida Rule of Appellate Procedure 9.420(c). /s/ Adam S. Tanenbaum ADAM S. TANENBAUM Florida Bar No

7 SERVICE LIST SYLVIA H. WALBOLT LUIS PRATS NANCY J. FAGGIANELLI CARLTON FIELDS JORDEN BURT, P.A West Boy Scout Boulevard, Suite 1000 Tampa, Florida JEFFREY M. COHEN CRISTINA ALONSO CARLTON FIELDS JORDEN BURT, P.A. 100 Southeast Second Street, Suite 4200 Miami, Florida ELIZABETH SCHWARTZ ELIZABETH F. SCHWARTZ, PA 690 Lincoln Road, Suite 304 Miami Beach, Florida MARY B. MEEKS MARY MEEKS, P.A. Post Office Box Orlando, Florida SHANNON P. MINTER CHRISTOPHER F. STOLL DAVID C. CODELL ASAF ORR NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California

8 SERVICE LIST (cont d) LUIS G. MONTALDO MIAMI-DADE CLERK OF THE COURTS Post Office Box Miami, Florida Counsel for Defendant Clerk in EILEEN BALL MEHTA BILZIN SUMBERG BAENA PRICE & AXELROD, LLP 1450 Brickell Avenue, Suite 2300 Miami, Florida Counsel for Defendant Clerk in ELENA VIGIL-FARINAS BERNADETTE RESTIVO JESSICA REILLY THOMAS L. HAMPTON RESTIVO, REILLY & VIGIL- FARINAS LLC Overseas Highway, Suite 237 Key Largo, Florida Case No. 3D RONALD E. SAUNDERS 2018 Lawson Road Tallahassee, Florida Counsel for Defendant Clerk in Case No. 3D ROBERT F. ROSENWALD, JR. NICHOLAS E. KALLERGIS OFFICE OF THE CITY ATTORNEY, CITY OF MIAMI BEACH 1700 Convention Center Drive, Fourth Floor Miami Beach, Florida Counsel for Amicus CYNTHIA L. GREENE LISSETTE GONZALEZ GREENE SMITH & ASSOCS., P.A Ponce de Leon Blvd., Ste. 230 Coral Gables, Florida Counsel for Amicus CHRISTOPHER W. RUMBOLD GLADSTONE & WEISSMAN, P.A. 101 North Federal Highway, Suite 702 Boca Raton, Florida Counsel for Amicus 8

9 HORATIO G. MIHET MATTHEW D. STAVER ANITA L. STAVER LIBERTY COUNSEL Post Office Box Orlando, Florida Counsel for Amicus SERVICE LIST (cont d) 9