Friday, December 07, 2007

R.I. Supremes Duck SSM Divorce

Those damned passivist judges strike again! This time it was in Rhode Island, where the Supreme Court told a Massachusetts-married lesbian couple to they couldn't divorce locally.

The three-to-two decision could have gone either way. Oddly enough, the court did not seem as terrified as so many in other states. A big concern has been whether divorcing a legally married SS couple would somehow open the door to recognizing those marriages. The littlest state's AG has already said for various purposes legal marriages elsewhere are okay there, but R.I. does not offer SSM...and apparently not SS divorce.

The best report of the decision was in the Providence Journal here. The 29-page ruling is here, as a PDF file. The Leonard Link analysis is here.

Like so many other rulings in the past couple of years, the court threw the big issues back to the state legislature. In a press release following the ruling, the rationale of the relative inaction was:
The role of the judicial branch is not to make policy, but simply to determine the legislative intent as expressed in the statutes enacted by the General Assembly. In our judgment, when the General Assembly accorded the Family Court the power to grant divorces from ‘the bond of marriage,’ it had in mind only marriages between people of different sexes.
There was the seeming mandatory irony here. The court said SSM was not off-limits. The ruling itself (page 28) included:
We do not mean to suggest, however, that the Family Court is precluded from adjudicating the validity of the marriage if one of the parties allegest the marriage is void or voidable...The parties in this case have not challenged the marriage, and therefore the issue of voidness is not properly before the Court. Moreover, we do not think it proper for the Court, on the state of this record, to attempt to determine whether same-sex marriage is "strongly against the public policy of this jurisdiction.
The dissenting justices noted that the case did not ask recognition of same-sex marriage to be performed by Rhode Island, rather the divorce issue. The couple had a legal Massachusetts marriage and had also then satisfied the residence requirement in Rhode Island to seek a dissolution of the marriage. "The subject matter jurisdiction of the Family Court does not turn on the gender of the parties; rather it turns on their status as a married couple," the dissent held.

The judges used the state statutes and regulations, and then whipped out a dictionary. They concluded that the R.I. codes didn't cover this and ducked it underlying issues. They refer to the General Assembly (legislature) number times in the decision, including the statement (page 16), really a charge, that " But, if there is to be a remedy to this predicament, fashioning such a remedy would fall within the province of the General Assembly.”

Not our job, man!

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