Thursday, April 03, 2008

Married? OK. Divorced. Not so Fast!

Four months ago, the Rhode Island Supreme Court justices clucked their chicken-y clucks. They were Cassandra Ormiston's reasonable, last hope in the state of what should have been simple. She was legally married and wanted a divorce where she lived, but the Family Court wouldn't do it. In the end, the high court also chickened out.

Speaking on a panel, The Culture of Same-Sex Marriage in New England, last week, Ormiston was understandably bitter. She had waded through the court system to the top. She entered this morass with the very sensible expectation that each level of court would be reasonable and humane.

The byzantine reasoning was judicial cowardice. Sure, the state's AG said that this same-sex marriage was conducted in Massachusetts before Ormiston and her wife moved and that nothing in R.I. law prohibited recognizing the marriage. So do it, recognize it.

In an analysis at Leonard Link, the high court was able to fudge this and avoid appearing to legalize SSM there, even obliquely, because of extreme narrowness. The 1961 act creating the Family Court relied on a dictionary definition of marriage in permitting the new court to hear all related cases. As comical as it seems from the outside, the justices scrambled to dictionaries and found definitions along the line of "the state of being united to a person of the opposite sex." They chose to avoid thinking and interpreting or even the common sense of the state recognizes the marriage, therefore can divorce the couple.

In reality, the true aim of this cowardice was to hide behind another branch of government. As attorney Leonard put it, "Both majority and dissent note that since the opinion is based on statutory interpretation, it can be simply overruled by the legislature through an amendment to the Family Court statute. No state constitutional amendment is required. "

Ormiston wants the same treatment other couples seeking divorce have gotten. "I need to get on with my life," she says.

"They all hide behind each other," said Karen Loewy, GLAD attorney and co-counsel in Goodridge. I had asked her about then Massachusetts Gov. Willard Mitt Romney saying it was the duty of the legislature to clarify SSM issues, while California Gov. Arnold Alois Schwarzenegger saying he didn't care that his legislature had passed SSM twice over a old citizen's poll finding, that he demanded the courts decide. Loewy said that given the chance any branch of government will push this controversial issue on another branch.

As she appealed through Family Court and into the R.I. Supreme Court, Ormiston continued to experience rude shocks. For one, she faced repeated questions about whether she and her wife, Margaret Chambers, wed and then moved to Rhode Island for political reasons, just to sue for divorce there and set a legal precedent. She told the symposium that this out of bounds — "We don't get married to fail!"

Ormiston thinks the Family Court should have quietly and quickly dealt with this divorce as it does with such requests for different-gender ones. Instead, she added, "This issue has been politicized and the common sense of it is being lost." She iterated how outrageous it is that the courts and others ask of her what they never would a straight couple, to move to Massachusetts and file for divorce after establishing residency.

While she is understandably bitter at the nonsensical treatment in her case, she is not without optimism for GLBT rights and marriage equality. As she put it, "Coming out in '65, I never in my wildest breams believed we'd come this far."

As the courts try to hide behind the legislature on this one, Ormiston dangles. Lawmakers here are cautious, the governor and several legislative leaders are anti-SSM, and changes in Rhode Island are traditionally deliberate (slow). No one expects the General Assembly here to help anytime soon.

This unintentional pioneer is caught on this old frontier. It's not fair, it's not logical, and it's certainly not equality in action.

Related Coverage: The struggles of Goodridge plaintiff, David Wilson, are here.

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