BY ARTHUR S. LEONARD | As same-sex couples from around the country prepare to go to California to marry, a Rhode Island trial judge suggested that the failure of other states to recognize those marriages - at least for the purpose of finding authority to grant divorces - might raise constitutional concerns.
On June 11, Providence Superior Court Justice Patricia A. Hurst, while ruling that her court lacked jurisdiction to rule on a petition for divorce for a lesbian couple married in Massachusetts, suggested that the parties go back to the Family Court and raise a state constitutional equal protection claim - and warned that the question deserved "immediate attention" from the Legislature.
Margaret Chambers and Cassandra Ormiston are both Rhode Island residents who crossed the state line to get married in Massachusetts. (The highest court in Massachusetts has ruled that since Rhode Island has no policy explicitly against same-sex marriage, in law, its constitution, or it judicial rulings, couples from there are exempt from its general prohibition on gay couples from out of state marrying there.) The couple continued to live in Providence after their wedding and later decided to end the marriage.
Massachusetts, however, has a one-year residency requirement for divorce, so Chambers filed a petition in the Rhode Island Family Court. Uncertain about his jurisdiction in the case, the Family Court judge took the question to the Rhode Island Supreme Court, which ruled he did not. Without taking a position on whether Rhode Island recognized the marriage, the high court - looking to the definition of marriage in 1961 when the Legislature established the Family Court and gave it authority to grant a "divorce from the bonds of marriage" - found that the Family Court could not dissolve a union of two women.
Chambers next went to the Superior Court, the trial court of general jurisdiction, arguing if the Family Court lacked jurisdiction, the Superior Court must have it under its general powers. Justice Hurst disagreed, finding that its jurisdiction over divorces was terminated when the Family Court was established.
Hurst clearly empathized with Chambers and Ormiston's plight, however, and said that what ought to be addressed is whether in failing to allow for divorce by a same-sex couple, the Family Court Act violated state constitutional principles of equal protection. A Rhode Island heterosexual couple who marry in Massachusetts can divorce in their home state and have any asset division and child custody and support issues resolved in the courts, but a same-sex couple is denied the same access to the courts. What legitimate state interest is served by that differential treatment?
The Rhode Island Supreme Court justices may have thought they'd dodged a politically-charged bullet in ruling narrowly on the Family Court's jurisdiction, but Hurst is calling their bluff, suggesting they should look at the 1961 law's constitutionality. She's also passing the buck, of course, finding that the equal protection question cannot properly be heard by her. Warning that "havoc... would ensue if the Rhode Island courts were forced to declare the Family Court Act unconstitutional," Hurst called for immediate intervention by the Legislature and the governor.
Given the current precedent in New York, established by an intermediate appeals court in February, this problem would likely not arise here, though the matter has not been settled definitively by the state's highest court. Governor David A. Paterson's recent order that state agencies recognize legal out-of-state gay marriages does not constrain the judicial branch from determining once and for all the constitutionality of this question.
In many states, the question could hardly arise, since state constitutional amendments there forbid recognizing same-sex marriages for any purpose. In states that have such a prohibition only in statute, a constitutional challenge as outlined by Judge Hurst could be mounted. Couples from these states should have their eyes wide open if they choose to marry in Californi