The Rhode Island Supreme Court Denies a Divorce to a Same-Sex Couple That Was Married in Massachusetts: Why This Case Was Wrongly Decided
By JOANNA GROSSMAN
|Tuesday, Dec. 11, 2007|
The Rhode Island Supreme Court ruled last week that Margaret Chambers and Cassandra Ormiston, a same-sex couple that got married in Massachusetts, could not petition for divorce in their home state of Rhode Island. Technically, the court simply ruled that the R.I. Family Court did not have jurisdiction to hear the case. However, the decision to rest the ruling on that technical rationale was not justifiable; the court should have reached the merits of the case and granted the divorce.
Where People Can Marry, Where People Can Divorce, and Why No State Will Grant Chambers and Ormiston a Divorce
Chambers and Ormiston have a common problem: They married three years ago and now seek to divorce. (A recent study of marriage and divorce revealed that the so-called "seven-year itch" is actually more like a three-year itch.) They also have a more unusual problem, however: No state will dissolve their union. A brief primer on marriage and divorce laws - with the wrinkle of same-sex marriage thrown in - will help explain why this is true.
First, states (as opposed to the federal government) generally regulate marriage. They dictate by statute how people get married, and whom they can marry. Though state laws differ in some of the particulars - some allow first cousins to marry, for example, while others do not - none requires residency as a prerequisite for marriage. Thus, a Rhode Island couple can marry in whatever destination they choose - a neighboring state like Massachusetts, or a distant one like California - as long as they meet that state's eligibility requirements for marriage and jump through its procedural hoops.
Moreover, states do not enforce each other's marriage restrictions - so a New Hampshire couple that cannot marry there because New Hampshire law does not permit first-cousin marriages can still legally marry in any state that does permit first-cousin marriages.
Second, once celebrated, a marriage is generally considered valid everywhere, if it was valid in the place it was celebrated. So a Rhode Island couple can, generally speaking, marry in Massachusetts and still be married when they return home, as long as they followed Massachusetts's rules (substantive and procedural) for marriage. There's an exception to this rule in some states for "evasive" marriages - that is, marriages entered into by a couple that specifically leaves home so that they can enter into a marriage not permitted by their home state. However, this exception is applied unevenly and does not apply in many jurisdictions.
Third, states tend to permit their courts to hear and rule on divorce petitions only if at least one party is a resident of the state. Thus, a hypothetical Rhode Island couple that marries in Massachusetts, but continues to reside in Rhode Island, must file a petition for divorce in Rhode Island's Family Court, rather than in the courts of Massachusetts (or any other state).
Before same-sex marriage (and alternative statuses like civil unions) entered the picture, this system worked reasonably well. Couples could have weddings anywhere - a Vegas chapel or a beach in Malibu - that suited their taste. And everyone resides somewhere, so every unhappily-married spouse had a forum in which to seek a divorce.
Where Same-Sex Couples can Marry (or Join Civil Unions), Where They Can Divorce
Same-sex marriage (or civil unions or domestic partnerships) posed several challenges to the traditional rules. One set of conflicts arose when Vermont enacted the nation's first civil union law in 2000. Under Vermont law, the civil union is identical to marriage in every respect other than name. Thus, civil union partners cannot just go their separate ways; they must seek a divorce in order to dissolve their union and permit a judge to decide issues relating to alimony, property distribution, child support, and so on.
Vermont law permits same-sex couples from any state to establish a civil union. In fact, the majority of civil unions, over the past seven years, have been granted to out-of-staters. But a key fact - and one that some of those non-resident civil union partners discovered the hard way -- was that it is a lot harder to dissolve a civil union, than to create one. Same-sex couples break up just as opposite-sex ones do (and perhaps just as often, though we do not have good data on this point). However, when a same-sex couple breaks up, the couple's members discover a jurisdictional conundrum. (I explored this problem in a previous column.
Let's consider a New York couple that enters into a civil union in Vermont, returns home, and eventually decides to part ways. That couple cannot file a petition for divorce in Vermont without first moving and residing there for six months. But that couple also cannot divorce in New York, because New York law does not recognize or give effect to civil unions. In Langan v. St. Vincent's Hospital, New York's highest court refused to give effect to a Vermont civil union for purposes of applying the state's wrongful death law (which turns on the definition of a "spouse"). Though the divorce question has never been litigated in a New York court, it is reasonable to assume that Langan forecloses a divorce to end a same-sex civil union.
The same result would obtain in other states, in which civil unions do not exist. Moreover, in some states, courts are prohibited by statute or constitutional amendment from giving effect to any formal legal status for a same-sex couple - whether it is called marriage, civil union, domestic partnership, or something else.
In practice, civil union partners from other states generally found that their home states refused to dissolve their unions. (I have described these cases in greater detail in a prior column.) A Connecticut appellate court, for example, refused to divorce a civil union couple in Rosengarten v. Downes because their union was not a "marriage," and therefore could not be "dissolved" under Connecticut law. (A small number of couples managed to convince courts to dissolve their civil unions on equitable grounds - that is, because it was just and fair to do so -- but those rulings have no precedential value.)
Now, three additional states, including Connecticut, have adopted civil unions by statute, so Vermont civil unions can be dissolved in the courts of those states as well. But for the many civil union partners who do not live in one of these four states, they are simply stuck.
What about same-sex marriages?
Massachusetts is the only state that permits same-sex couples to marry. But, unlike with Vermont civil unions, same-sex couples from other states are not necessarily entitled to go marry in Massachusetts.
Under a peculiar Massachusetts law, called a reverse marriage evasion law, nonresident couples can only marry in Massachusetts if their home states do not expressly prohibit them from marrying. Since most states now specifically ban same-sex marriages, same-sex couples from most states cannot come to Massachusetts to marry (unless they first move there).
According to a ruling from the Massachusetts Supreme Judicial Court in Cote-Whitacre v. Department of Public Health, which I have written about in an earlier column, and a subsequent lower court interpretation of the ruling, only nonresident same-sex couples from Rhode Island and New Mexico can celebrate marriages in Massachusetts. Why this odd result? These are the only two states, according to the Massachusetts courts, in which there is no statute, constitutional amendment, or ruling from the state's highest court banning same-sex marriage.
Can a Rhode Island Same-Sex Married Couple Divorce in Rhode Island? The Rhode Island Supreme Court's Analysis
So let's consider the plight of just those particular couples - nonresidents from Rhode Island or New Mexico who contract a legal marriage in Massachusetts, at least according to Massachusetts law. What happens when one of those couples tries to divorce? That is the situation faced by Chambers and Ormiston, the parties to the case recently decided by the Rhode Island Supreme Court.
The couple, both longtime residents of Rhode Island, traveled to Massachusetts the week after same-sex marriage became legal there. They applied for a marriage license and participated in a marriage ceremony solemnized by a Massachusetts Justice of the Peace. The couple then returned to Rhode Island to live.
Two-and-a-half years later, Chambers filed a petition for divorce in Rhode Island Family Court. Instead of acting on the petition, that court certified a question to the state's highest court as to whether it had jurisdiction to grant a petition for divorce to a same-sex couple. (Certifying a question to a higher court is a way for a lower court to avoid making a misstep of law that will later be overruled.)
The Rhode Island Supreme Court treated the question as one of jurisdiction. The Rhode Island code establishes a "family court . . . to hear and determine all petitions for divorce from the bond of marriage." The certified question is thus whether the Chambers-Ormiston same-sex marriage is included within this grant of jurisdiction. The Rhode Island Supreme Court ultimately said "no," but not for very convincing reasons.
The Rhode Island Supreme Court's reasoning was led astray by its first conclusion - that the Family Court's jurisdiction extended to same-sex marriage only if the legislature intended the word "marriage" to include same-sex when the Family Court was created in 1961. If not, the Rhode Island Supreme Court suggested, then the Family Court does not have jurisdiction even to decide whether to recognize this same-sex marriage long enough to dissolve it.
Framed as a question of original intent, the jurisdictional question could only be answered in the negative; obviously, in 1961, same-sex marriage was simply not on the radar. The court "bolsters" its conclusion by resorting to dictionaries published or revised around that time - reaching the unsurprising conclusion that "marriage" was then typically defined as a union between a man and a woman. But it could have reached the same answer without the superficial exercise in dictionary combing. Same-sex marriage did not exist - legally or as a social movement - in 1961, so there would be no reason to assume the legislature had given it any thought one way or the other. To be sure, no 1961 legislature made a conscious decision to provide for the rights of same-sex couples when drafting their marriage laws.
The Problem with the Rhode Island Supreme Court's Analysis
This analysis is simply wrongheaded. By comparison, there have been other changes in marriage laws since 1961 that the court surely would not have ignored.
To take just a few examples, restrictions on marriages by the mentally-disabled have been lifted in many states, the age for legal marriage has gone up in many states, and some states have abolished or modified their bans on first-cousin marriage. Yet no one would suggest that a Rhode Island couple cannot seek a divorce in Family Court unless their marriage would have been legal in 1961, when the jurisdictional grant was enacted. The question, instead, is whether the couple is now "married" and therefore entitled to seek the aid of the court for dissolution.
When is a couple "married"? Under basic principles of marriage and family law, a couple is "married" when the town clerk issues them a license to marry and an authorized officiant (clergy, judge, justice of the peace, etc.) declares them so. (Couples in some states may also become legally married by simply declaring themselves so, a so-called common-law marriage.) To avail itself of the Family Court's jurisdiction, a couple should only have to produce a marriage certificate issued by any state (or any country, for that matter).
This reasoning does not mean that a court must ultimately treat the marriage as valid, however. Once a Rhode Island court accepts a petition for divorce, it can then take up the real issue on the merits: should Rhode Island give effect to a same-sex marriage from elsewhere even though its own laws do not expressly permit the celebration of same-sex marriages in Rhode Island?
The answer to this question should be yes, if the court were to apply commonly- accepted principles of interstate marriage recognition (which I have explained in a 2005 column). Rhode Island has no express prohibition on same-sex marriage, nor any affirmative policy against same-sex relationships. Principles of comity thus suggest that it ought to respect the decision of a sister state to celebrate a marriage, even though it might have made a different decision for itself. Moreover, even if Rhode Island courts chose not to grant full recognition to a same-sex marriage from Massachusetts, precedent justifies granting incidental recognition - recognizing it long enough to dissolve it.
Of course, the court might well reach the opposite conclusion - but that conclusion would entail meaningful substantive analysis of Rhode Island's laws and public policy, the principles of marriage recognition, and the difficult interstate conflicts created by same-sex marriage. The dissenting justices in Chambers v. Ormiston thus argued convincingly that the parties should have been given this chance to argue the case on the merits.
Whatever answer the court gave would have been more satisfying, and more appropriate, than one that purports to emanate from the 1961 edition of Webster's dictionary. A ruling that denies a couples access to divorce effectively everywhere - and thus consigns them to a life of legal limbo -- ought to rest on sturdier principles than that.
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