M. Charles Bakst

High court, gay marriage, and justice
01:00 AM EDT on Tuesday, August 14, 2007
I disagree with him, but I applaud Bishop Thomas Tobin’s submitting a brief in the state Supreme Court case on whether Rhode Island should recognize a same-sex marriage performed in Massachusetts.
He says it shouldn’t.
I wish other religious leaders also had weighed in. Catholics are in the majority in Rhode Island — indeed, four of the five justices are Catholic — but no religion has a monopoly on truth.
Judges can benefit from thoughtful views from any quarter. That’s why friend-of-the-court briefs are welcome.
Chief Justice Frank Williams says that, as a general rule, “We don’t do this pro forma, just to hear from people or to make them feel important…We really do value the input.”
Williams, a Catholic, says judges can — albeit “sometimes with difficulty” — focus on legal issues before them and put aside teachings of their religion. His view on gay marriage? He says he doesn’t really have one.
The case, which the justices are to hear Oct. 9, is about whether the Family Court should recognize the Massachusetts marriage of two Rhode Island women who now seek a divorce.
Briefs from Governor Carcieri and Attorney General Patrick Lynch say a divorce could be granted without answering the question of recognition. But if the court does treat the larger issue, Carcieri, like the bishop, says the marriage should not be recognized; Lynch says it should.
I wish Lynch went further. Gay marriage came to Massachusetts via a court ruling there. Why doesn’t Lynch’s brief urge the Supreme Court here to explicitly declare gay marriage legal in Rhode Island? He tells me that would be an “inappropriate” request given the limited scope of the case.
(He says it might be better for a gay couple to apply for a marriage license, be denied, and then go to court. Then too, he says, they might get an adverse ruling.)
The Supreme Court specifically invited Carcieri and Lynch to submit briefs, though anyone else was free to also. Lynch’s brother, William, the Democratic state chairman, slammed Republican Carcieri for using state funds to hire “right-wing” lawyer James Bopp to write his brief.
Would Lynch have felt better if Carcieri used state lawyers? That’s tax money too, Lynch conceded, but at least they’re “already getting paid anyway.”
William Lynch says Carcieri has no legal standing in the case. What’s his brother’s standing? William Lynch calls it the AG’s duty to “weigh in on issues that affect the people of the state.” I’m glad he did. But, hey, Carcieri is the governor and the Supreme Court sought his views, too.
I do wince at what the governor and bishop say in their briefs.
The bishop: “The recognition of same sex relationships as ‘marriages’ would have profound, radical consequences.”
Carcieri: “Recognizing a same-sex marriage in Rhode Island would not just allow entry of same-sex couples into marriage but would be a wholesale redefinition of marriage.”
I say: Recognizing this gay marriage — even gay marriages in general — would not have radical consequences. If Rhode Island hosted same-sex weddings, yes gay couples would gain legal privileges — and dignity and stability, which all of society should welcome. There’d be no effect on traditional marriages.
I’ve been in Massachusetts several times recently. The swan boats were still plying the waters of Boston’s Public Garden. The Cape Cod Rail Trail was bustling. Sam’s Bakery in Fall River was still turning out cabbage pies.
Life in the Bay State goes on.
M. Charles Bakst is The Journal’s political columnist.
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