GayCityNews - No Gay Divorce in Rhode Island

GayCityNews - No Gay Divorce in Rhode Island


By: ARTHUR S. LEONARD
12/13/2007
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In a 3-2 decision, the Rhode Island Supreme Court on December 7 ruled that the state's Family Court has no jurisdiction to decide a divorce involving two lesbian residents who married in Massachusetts in 2004.
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Responding to a question posed by Providence County Family Court Judge Jeremiah Jeremiah, Jr., the court tuned to dictionary definitions of marriage from the period 1955-1965, when the state's family court statute was passed, to limit the court's jurisdiction to divorces involving opposite-sex marriages.In a sharp dissent, Justice Paul A. Suttell, joined by Justice Maureen McKenna Goldberg, criticized the court for leaving the couple, Margaret R. Chambers and Cassandra B. Ormiston, in a "legal limbo."Writing for the majority, Justice William P. Robinson III acknowledged the potential for "palpable hardship to the persons affected," but insisted that remedy can only come through legislative action.Chambers and Ormiston were married on May 26, 2004, just nine days after same-sex marriages were first allowed in Massachusetts, acting quickly since then-Governor Mitt Romney was threatening to sue local clerks allowing out-of-state same-sex couples to marry. Romney cited a 1913 statute rarely invoked and originally intended to prevent interracial marriages by couples traveling there to evade their home state's miscegenation laws.Massachusetts' Supreme Judicial Court upheld the 1913 statute after a suit from Gay & Lesbian Advocates & Defenders but ruled it would only apply to states with explicit same-sex marriage prohibitions. A trial judge later found that Rhode Island same-sex couples can in fact legally marry in Massachusetts, so that state recognizes the Chambers-Ormiston union.Unfortunately for them, Massachusetts will only exercise jurisdiction over a divorce petition that involves one of its own residents, so the couple cannot simply return there to end their marriage.Justice Robinson's opinion avoided both federal constitutional questions involving Full Faith and Credit or the common law doctrine of "comity," under which states generally recognize as valid marriages lawfully contracted elsewhere. Instead, he focused on interpretation of the family court statute, enacted in 1961, to decide whether the union Chambers and Ormiston seek to dissolve is in fact a "marriage" as legislators in that year would have understood.Posing the question that way essentially answers it. Not surprising dictionaries at the time did not contemplate same-sex unions.Justice Suttell in dissent pointed out that Rhode Island courts have jurisdiction to grant divorces regardless of whether state law there would have allowed the marriage in the first place, for example in the case of an incestuous union. The same applies to underage and polygamous marriages. Furthermore, as Suttell noted, Rhode Island has traditionally considered as valid any marriage legal in the jurisdiction where it was performed. By its dictionary-based jurisprudence, the majority of the court in this case created a "gay exception" to a well-established legal rule, for no articulated reason.Suttell invoked a Rhode Island Supreme Court ruling from 1897 to observe, "we are bound to construe a statute in the most beneficial way which its language will permit, in order to prevent inconsistency or injustice," clearly a prescription the majority did not follow, since the family court statute did not "require" the result it adopted.Pointing to de facto parent rulings regarding lesbian mothers and legislative recognition of same-sex partner benefits in employment, the dissenters argued the state has no overriding policy of hostility toward gay families. The ruling allows for a remedy by the Legislature, which is already considering a same-sex marriage measure. Perhaps the manifest unfairness of this ruling will fuel movement toward that goal.
©GayCityNews 2007