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Governor’s stance on divorce decried

12:42 PM EDT on Thursday, August 16, 2007

By Edward Fitzpatrick
Journal Staff Writer

PROVIDENCE — Four organizations yesterday called for Governor Carcieri to withdraw the legal brief he filed in the state’s first same-sex divorce case, saying the document includes an “inexplicable attack” on Rhode Island’s no-fault divorce laws.

“Although it has not been publicized at all, your brief contains a frontal attack on the concept of no-fault divorce, a fundamental principle of family law for over three decades in Rhode Island (and much of the rest of the country),” the groups wrote. “It is hard to imagine why the brief even touches on this issue, other than to turn the brief-writing opportunity into an ideological pulpit.”

The local affiliate of the American Civil Liberties Union, the local chapter of the National Organization for Women, the Rhode Island Coalition Against Domestic Violence and the National Association of Social Workers/Rhode Island sent Carcieri a two-page letter, saying no-fault divorce laws have produced “significant benefits” for women, including a reduction in domestic violence.

The groups said they want to know if the criticism of no-fault divorce represents the Republican governor’s viewpoint or that of the nationally known conservative lawyer, James Bopp Jr., who received $15,000 in public money to write the friend-of-the-court brief.

“We know there are some people out there who long for a return to the ‘idyllic’ 1950s when women knew their place was in the kitchen,” the groups wrote, “but we do not expect to hear echoes of it emanating from a gubernatorial court brief!”

Black’s Law Dictionary defines no-fault divorce as “A divorce in which the parties are not required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences.”

Carcieri’s spokesman, Jeff Neal, said the governor is not going to withdraw the brief and “believes the argument in the brief stands on its own merit.”

Neal said, “It is ironic that the ACLU, which purports to support the First Amendment, is working so hard to stop the governor from exercising his constitutional free speech rights. Clearly, they oppose his free speech rights because he expresses a different point of view than theirs. There is absolutely no reason to believe that any of these groups would have complained if the governor supported their point of view.”

Neal emphasized that the Supreme Court invited the governor to file a legal brief.

And, he said, “The governor’s views on this issue should be no surprise to anyone in Rhode Island. They were well known when a majority of Rhode Islanders chose to elect him twice.”

The Supreme Court invited state officials and other interested parties to file friend-of-the-court briefs in the closely watched case, which involves two Providence women who got married in Massachusetts and are now seeking to get divorced in Rhode Island.

The governor’s office signed a $15,000 contract with Indiana lawyer James Bopp Jr., a Republican National Committeeman and general counsel for the National Right to Life Committee, to write the brief, which was signed by both Bopp and local lawyer Joseph S. Larisa Jr., who was chief of staff to former GOP Gov. Lincoln C. Almond.

Carcieri’s brief argued that the Supreme Court can grant the two women a divorce without answering the highly charged question of whether a same-sex marriage performed in Massachusetts should be recognized in Rhode Island. But if the court does take up the larger issue, the brief argued that Family Court should not recognize the marriage between Margaret R. Chambers and Cassandra B. Ormiston.

One portion of the brief argued that, “Recognizing same-sex marriage will only undercut the desired stability the state seeks to promote. Indeed, the effect of such recognition may be likened to that of recognition of no-fault divorce.”

The brief quoted a 2006 article by Douglas W. Allen, an economics professor at Simon Fraser University in Canada, which said, “Family law went through a conceptual revolution called no-fault divorce, and 30 years later, we know something about the consequences of that paradigm shift.”

The article said, “The real negative impact of the no-fault divorce regime was on children, and increasing the divorce rate meant increasing numbers of disadvantaged children.”

Carcieri’s brief said. “By inadvertently allowing for opportunistic divorce, the law created a whole new class of inequality as many women and children entered poverty through divorce, and the quality of life for the entire family was reduced.”

The brief cited a 1992 book, No-Fault Divorce: What Went Wrong? — by a University of New Mexico management professor, Allen M. Parkman — saying it argued that “women in no-fault divorce states took steps to protect their human capital by entering the work force and pursuing education upon seeing the effects of divorce on their and others’ families.”

The four groups sent Carcieri a letter, saying the arguments in the legal brief “suggest a number of disturbing scenarios.” For example, they questioned whether Carcieri might try to repeal the state’s no-fault divorce law, and they questioned whether Carcieri’s “numerous and deep proposed cuts to child welfare programs have been based on the view that policies like no-fault divorce are largely responsible for the poverty problems faced by our children.”

The groups urged Carcieri to withdraw the brief or to clarify his position, saying, “When a brief filed in the R.I. Supreme Court appears to put much of the blame of childhood poverty and economic inequality faced by women on modern divorce laws, and further criticizes those laws for encouraging women to pursue educational opportunities, surely the public deserves to know exactly where the dividing line between your official policy positions and those of the private attorney hired to write the brief lies.”

efitzpat@projo.com