Officials: R.I. can grant gay divorce

Officials: R.I. can grant gay divorce

01:00 AM EDT on Thursday, August 2, 2007

By Edward Fitzpatrick

Journal Staff Writer

PROVIDENCE — A state court can grant two Providence women a divorce without answering the highly charged question of whether a same-sex marriage performed in Massachusetts should be recognized in Rhode Island, Governor Carcieri and Attorney General Patrick C. Lynch agreed in legal briefs filed with the state Supreme Court yesterday.

But Carcieri and Lynch differed sharply over what the outcome of the case should be if the high court does take up the larger issue.

Carcieri, a Republican and a Catholic who has opposed bills to legalize same-sex marriage, argued that Family Court should not recognize the marriage between Margaret R. Chambers and Cassandra B. Ormiston.

“Marriage as a legal union of one man and one woman is clearly the bedrock of Rhode Island family law,” Carcieri’s brief said, citing gender-specific terms such as “husband and wife” in state law. “Because of the pervasiveness of this position throughout its family law statutes, Rhode Island has a strong public policy against recognition of any other marriage than that between one man and one woman.”

Lynch, a Democrat and a Catholic who has a sister who married a woman in Massachusetts, argued that Family Court should recognize the Chambers/Ormiston marriage under principles of comity, in which states recognize the laws and judicial decisions of other states.

“The crucial issue is whether there is a public policy in this state that is so strong it will require Rhode Island to except same-sex marriages from the traditional respect and recognition it has shown to laws of its sister states,” Lynch’s brief said. “Rhode Island’s case law and legislative enactments do not support such a finding.”

The Supreme Court had invited state officials and other interested parties to file friend-of-the court briefs, and the deadline was yesterday. The responses, which include briefs from the bishop of the Roman Catholic Diocese of Providence, the American Civil Liberties Union and the Marriage Law Foundation, show the case is being watched throughout the state and the country.

Chambers and Ormiston married in Fall River in May 2004, shortly after Massachusetts became the first state to issue marriage licenses to same-sex couples. Their case marks the first time a same-sex couple has sought a divorce in Rhode Island, and it’s believed to be the first time any of the same-sex couples married in Massachusetts have sought a divorce in another state.

In December, Family Court Chief Judge Jeremiah S. Jeremiah Jr. asked the Supreme Court whether his court had jurisdiction to hear the divorce case. The Supreme Court sent the matter back to Family Court to answer factual questions and to clarify the question of law, which is now worded this way: “May the Family Court properly recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of the same sex who were purportedly married in another state?”

Carcieri and Lynch say the divorce case can be handled without answering that question.

Carcieri’s brief — signed by Indiana lawyer James Bopp Jr. and local lawyer Joseph S. Larisa Jr., former Republican Gov. Lincoln C. Almond’s chief of staff — noted state law says divorces can be granted even when marriages are “void or voidable by law.”

“The Family Court can thus proceed with the divorce petition without a response from this court addressing the legality or the validity of the marriage,” the brief said. “Indeed, because of the significance of this issue and the lack of necessity for this court to consider it, the policy of the State of Rhode Island on the issue of same-sex marriage is most properly left to the people to establish through referendum or, at minimum, through the legislative process.”

Lynch’s brief — signed by Assistant Attorney General James R. Lee and Special Assistant Attorney General Christopher R. Bush — said Family Court can grant a divorce no matter whether the marriage is “valid, void or voidable.”

“This court need not and should not answer this question because it is based on a faulty premise — that a review of a marriage’s ‘validity’ is a prerequisite to granting a divorce in Rhode Island. It is not,” the brief said. So answering the question “would amount to nothing more than an advisory opinion.”

But the Marriage Law Foundation, based in Orem, Utah, filed on behalf of three groups, saying, “Rhode Island will grant a divorce only to a couple in a valid marriage.” The Supreme Court “understood, we believe, that jurisdiction is not the truly fundamental issue here; the truly fundamental issue is the validity in Rhode Island’s eyes of the Chambers-Ormiston marriage,” the brief said. “Hence, this court ordered a reworking of the certified question to its present form, with its emphasis on judicial recognition or not of such a marriage.”

The Most Rev. Thomas J. Tobin, bishop of Providence, filed a legal brief, saying, “The recognition of same sex relationships as ‘marriages’ would have profound, radical consequences. This issue is too important to be debated only in legal briefs, only by those sufficiently aware of the issue to know about this case and with sufficient resources to enlist counsel. The issue deserves the robust, full ranging debate available in the media and the legislative process.”

Gay & Lesbian Advocates & Defenders, based in Boston, filed a brief, citing a 1904 Supreme Court case that says Rhode Island considers a marriage performed in another state valid unless it’s “odious by the common consent of nations” or “dangerous to the fabric of society.” GLAD said, “Rhode Island has taken actions that indicate a belief that it is actually beneficial to the fabric of society to protect and support Rhode Island gay and lesbian citizens and their relationships.” For example, “Rhode Island law extends insurance benefits to the dependents of state employees, and ‘dependents’ is defined to include a ‘domestic partner.’ ”

The National Legal Foundation, based in Virginia Beach, Va., filed a brief, saying the 1904 case only has a superficial resemblance to the divorce case — just as “The Breakers has a superficial resemblance to a tiki hut.” The brief said, “Man-woman marriage is the law of Rhode Island, and it is the law of the species.” Also, it said, “No court has a rightful power to redefine, to deconstruct or to dismantle the venerable institution of marriage — or, having ostensibly done so in Massachusetts, to export that wrong to Rhode Island.”

The American Civil Liberties Union, based in New York, and its Rhode Island affiliate filed a brief, saying Chambers and Ormiston cannot get divorced in another state because they live in Rhode Island. So if they can’t get divorced here, they’d “be left without any legal means to end their marital rights and obligations,” the brief said. “The Rhode Island Constitution forbids such an unequal denial of access to a legal remedy.”

Responses to this initial round of briefs must be filed by Aug. 15, and briefs responding to the second round must be filed by Aug. 31. The Supreme Court then will pick a date for oral argument.