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Examining the Legality of Rhode Island Divorce for Same-Sex Marriages
(Total Divorce) August 10, 2007 — Can Rhode Island dissolve a marriage that it could not legally create? That's the divorce question being asked by Family Court Chief Judge Jeremiah S. Jeremiah Jr. as a result of a recently-filed petition for divorce in Rhode Island.
Judge Jeremiah has asked the State Supreme Court to determine whether or not he has proper jurisdiction to grant a Rhode Island divorce to two women who were married to each other in neighboring Massachusetts, where same-sex marriages are legal.
Margaret Chambers and Cassandra Ormiston traveled to Massachusetts in 2004 to get a marriage license and marry because same-sex marriage is not recognized in their home state of Rhode Island. They have now filed a petition for a Rhode Island divorce with a family court.
Austin Nimocks, senior legal counsel for a largely Christian based organization called The Alliance Defense Fund (ADF), asserts that the Rhode Island marriage laws are clear and they don't include any provisions for dealing with same-sex marriages. He says that if the Supreme Court were to rule that the women can be granted a divorce in Rhode Island it would "radically redefine marriage in Rhode Island without legislative or voter input". Needless to say, ADF is strongly opposed to same-sex marriage and divorce.
A friend-of-the-court brief has been filed by attorneys with the ADF. The brief argues that Rhode Island divorce can only be granted to couples who are legally married under the laws of the state and can not be extended to couples in other relationship contracts.
Nimocks has gone so far as to say anything outside of a one woman and one man marriage is a "counterfeit". He goes on to state, "Rhode Island should not allow same-sex 'divorce' to become a back-door entrance to the recognition of same-sex 'marriage'".
Although the Rhode Island same-sex divorce is bitterly opposed by ADF, it does have some supporters.
Legal briefs on the case have been filed by the Republican Rhode Island Governor Donald Carcieri and Democratic Attorney General Patrick C. Lynch. Both men say that the court can grant the women a Rhode Island divorce without answering the question of whether a same-sex marriage performed in Massachusetts should be recognized. However, even in their support, they differ on what the outcome should be if the Supreme Court allows the Rhode Island same-sex divorce.
Governor Carcieri's opinion is that the court should in no way recognize same-sex marriage, although the divorce can be granted because Rhode Island divorce law allows a divorce to be granted even when the marriage is void or voidable by law. Carcieri's brief states that "marriage as a legal union of one man and one woman is clearly the bedrock of Rhode Island family law."
Lynch argued that Rhode Island should recognize the marriage under principles of comity, in which states recognize the laws and judicial decisions of other states. He also argues in his brief that, "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. Rhode Island's case law and legislative enactments do not support such a finding."
Lynch has a sister who married another woman in Massachusetts.
This Rhode Island divorce case is being watched closely across the country and there have been briefs filed by various groups and individuals. This is a landmark case, as it is believed to be the first time same-sex couple who were married in Massachusetts has filed for divorce outside of the state.
Visit The Divorce Blog and of course Total Divorce for the latest updates on this Rhode Island same-sex divorce case.