Lawyers contend Rhode Island should grant same-sex divorce

Posted on February 12, 2007
Filed Under Rhode Island | Leave a Comment

Lawyers for the two women seeking Rhode Island’s first same-sex divorce are weighing in on the legal questions raised last month by the state Supreme Court.

The case involves two Providence women — Margaret R. Chambers and Cassandra B. Ormiston — who married in Fall River in May 2004, shortly after Massachusetts became the first state to issue marriage licenses to same-sex couples.

In legal briefs, their lawyers argued that the U.S. Constitution’s full faith and credit clause and the federal Defense of Marriage Act are irrelevant to this case. Instead, the lawyers said, the case should hinge on principles of comity, in which states respect the laws and judicial decisions of other states.

Ormiston’s lawyer, Nancy A. Palmisciano, said the women are asking the court “to recognize the license issued to them by the State of Massachusetts, for which they qualified and for which they applied in good faith. In other words, they wish to have this marriage certificate treated like the marriage certificate of every other couple. They do not wish to go through the purgatory of this case to rest in legal limbo.”

Rhode Island law does not explicitly prohibit or allow same-sex marriages. “The question here is whether or not the State of Rhode Island, for purposes of divorce, is going to recognize marriage certificates from other states and foreign countries issued to same-sex couples,” Palmisciano said in a 10-page brief. “Or, perhaps, we should phrase the question differently, and ask if the State of Rhode Island, through its Supreme Court, is willing to carve out a gay exception to the recognition of marriage certificates from other jurisdictions.”

The full faith and credit clause requires states “to give effect to the legislative acts, public records, and judicial decisions of other states,” according to Black’s Law Dictionary.

But Chambers’ lawyer, Louis M. Pulner, said courts have not turned to that clause to settle questions about whether to recognize marriages. “The absence of controlling Full Faith and Credit precedents is a reflection of the fact that American courts — including Rhode Island’s — have consistently and with no difficulty relied on principles of comity alone to address the question of recognition of out-of-state marriages,” he said in a 15-page brief.

Also, Pulner said the full faith and credit clause does not apply to foreign countries, while comity would apply if a same-sex couple came before a Rhode Island court with a marriage license from a country such as Canada. He said Rhode Island follows a “place of celebration rule,” in which marriages validly entered in other places must be respected in Rhode Island unless the marriage is “odious by the common consent of nations or if its influence is thought dangerous to the fabric of society, so that it is strongly against the public policy” of Rhode Island.

Pulner said Rhode Island has never refused to recognize a marriage for those reasons, and he said the marriage of a same-sex couple does not fall into that exception, either.

The state legislature “has considered and repeatedly refused to adopt legislation singling out the marriages of same-sex couples for disrespect by the state,” Pulner wrote. “On the contrary, as evidenced by its laws and judicial decisions, Rhode Island increasingly regards same-sex partnerships with respect and tolerance, negating any basis for the application of the ‘odious’ exception to the general rule of respect.”

Pulner said the Defense of Marriage Act also should have no bearing on this case. The act, which Congress passed allows states to refuse recognition of same-sex marriages performed in other states and defines marriage as exclusively between one man and one woman for all purposes under federal law.

Pulner said the act, which he described as a “permission slip” that let states decide whether to recognize same-sex marriages performed in other states, “does not speak to the fundamental question at issue in [this] case — whether as a matter of comity, Rhode Island will recognize the validity of the parties’ Massachusetts marriage for the purpose of entertaining this divorce petition in the Family Court.”

Palmisciano called the act “a political hoax,” saying, “The statute leaves every state to its own devices — and every state must follow comity as part of its own legal precedents and historical tradition.”

Source: Providence Journal

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