Rhode Island news
Debate over whether R.I. should grant same-sex divorce goes before hgh court
06:52 PM EDT on Tuesday, October 9, 2007
PROVIDENCE -- Rhode Island’s first same-sex divorce case has generated a pile of detailed legal arguments, but lawyers for the two Providence women today told the state Supreme Court that the issue is simple and clear-cut.
Margaret R. Chambers and Cassandra B. Ormiston received a valid marriage certificate in Massachusetts in 2004, the lawyers said, and now the couple should be allowed to get a divorce in their home state.
“The issue today is one that is very narrow in scope,” Chambers’ lawyer, Louis M. Pulner, told the high court. “Do we recognize a validly-entered-into marriage in the state of Massachusetts for the purposes of granting a divorce here in the state of Rhode Island?”
Ormiston’s lawyer, Nancy A. Palmisciano, agreed the issue is narrow, saying, “We are simply asking that the certified marriage certificate filed in this matter be accorded the appropriate import as (would) any other certified marriage certificate that is filed in the Family Court.”
Supreme Court Chief Justice Frank J. Williams noted it’s “unusual in this courtroom” to have both sides agreeing on an issue. But the matter has been intensely debated in legal briefs filed by groups from throughout the country, and Williams thanked those that filed friend-of-the-court briefs.
The case has received national attention because it’s believed to mark the first time that any of the same-sex couples married in Massachusetts have sought a divorce in another state. The Supreme Court is considering this question: “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?”
Pulner and Palmisciano argued the ruling should hinge at least in part on principles of comity, in which states respect the laws and judicial decisions of other states. Pulner cited a 1904 case, “Ex parte Chase,” in which the Supreme Court said Rhode Island considers a marriage performed in another state to be valid unless that marriage is “odious by the common consent of nations” and “strongly against the public policy” of the state.
“The issue of comity,” Pulner said, “is one where I think this court should rest its hat on making a very simple decision.”
Pulner said some have suggested that if this marriage is recognized, Rhode Island would be inviting same-sex couples to get married here. But, he said, “Very simply put, people cannot get married here in the state of Rhode Island if they are of the same sex.”
At the same time, Massachusetts has a valid law allowing same-sex marriage, and this couple should be able to go to Family Court for a divorce, Pulner said.
“Our legislature has made it clear that this Family Court will entertain divorces be they be valid, void or voidable,” he said. “I don’t think we need to get into any other distinction here but to acknowledge that the marriage between Chambers and Ormiston in the state of Massachusetts is valid.”
Justice Paul A. Suttell asked Pulner, “If this court should answer the question in the negative, what remedy is available to your client?”
Pulner said one of the women could move to Massachusetts and live there for a year before seeking a divorce in that state, but he said it would be “extremely inappropriate” to force such a step.
Pulner said that while Rhode Island’s legislature has had chances to pass a law on same-sex marriage, “they have not embraced it nor have they rejected it.”
Williams noted the legislature also has chosen not to pass laws allowing civil unions or same-sex marriages.
“They have opted not to take a position either way,” Pulner replied, saying that speaks “to how this court should be looking at this particular issue.”
Williams said, “We are not the legislature, though, Mr. Pulner.”
“I grant you that, you honor,” Pulner said. But he said the legislature has done nothing while it has known that local same-sex couples are crossing the border to get married in Massachusetts.
At another point, Williams tried to distinguish between arguments Palmisciano was making about principles of comity and Rhode Island statutes. “Look at the statutes,” Williams said. “Is there anywhere that they talk about parties of the same gender? In fact, the statutes talk specifically about a man and a woman, don’t they?”
Palmisciano agreed.
Williams said, “I mean, they are older statutes. The last series of statutory enactments were in the ‘60s. But they clearly speak in terms of heterosexual marriages — man and a woman. Are you asking us to now read the statutes as permitting two of the same sex are covered by the statutory scheme that was adopted a generation ago? Or are you basing your argument on comity?”
“I’m doing both, your honor,” Palmisciano replied. “I’m addressing comity in terms of the over 100-year tradition of recognizing that a marriage valid where celebrated is valid everywhere. And I’m asking you to utilize the statutory scheme as indicative of the kind of access our legislature has intended the parties to have for the dissolution of relationships.”
Palmisciano said she’d recently handled a divorce involving a couple from China who were in Rhode Island on student visas.
“It just struck me as a little anger inducing,” she said. “I don’t begrudge them access to our court system, but they were able to assert their rights under our Constitution, dissolve this marriage. And here we have two American citizens who have not been able to push their divorce forward because they happen to be members of the same sex.”
Typically, the Supreme Court issues decisions about six weeks after hearing arguments, a court spokesman said.
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