It appears the gay community were just given an opportunity to challenge the Federal Defense of Marriage Act along with state bans on same-sex marriage.
A lesbian couple that married in Massachusetts cannot get divorced in their home state of Rhode Island, the state Supreme Court ruled Friday.
The court, in a 3-2 decision, said the state’s family court lacks the authority to grant the divorce of a same-sex couple because Rhode Island lawmakers have not defined marriage as anything other than a union between a man and a woman.
“The role of the judicial branch is not to make policy, but simply to determine the legislative intent,” the court wrote.
Cassandra Ormiston and Margaret Chambers wed in Massachusetts in 2004 and filed for divorce last year in Rhode Island, where they both live. But opponents of same-sex marriage said the court correctly avoided taking a step toward recognizing such unions.
Massachusetts, the only state where gay marriage is legal, restricts the unions to residents of states where the marriage would be recognized, and a Massachusetts judge decided last year that Rhode Island is one of those states.
No law specifically bans same-sex marriages in Rhode Island, but the state has taken no action to recognize them. The justices said Rhode Island laws contain numerous references to marriage as between a woman and a man.
Without knowing more details, I think this couple has a valid challenge under the Privileges and Immunities clause, Full Faith and Credit Clause, as well as Equal Protection Clause. As much as I feel for this couple though, I don’t think they should challenge the Rhode Island ruling. Stronger and more favorable cases will come along with more sympathetic plaintiffs. This couple were residents of another state, Rhode Island, who had a drive-through wedding in Massachusetts. I think it will play differently in the courts if the couple had lived in Mass. but moved to another state for job or other reasons. It would also be more powerful if it were a state that bans same-sex marriage rather then Rhode Island which appears mostly neutral, except for the 3-2 ruling today. A statute passed specifically to discriminate against gays will also allow courts to add teeth to the rational basis standard of review they are likely to use. If that is the case, hopefully the decision resembles Romer v. Evans in which the Supreme Court said the state constitutional amendment was â??born of animosity toward the class of persons affectedâ? and further that it had no rational relation to a legitimate governmental purpose.
Even while studying for other exams, I can’t get ConLaw out of my head.