Judge points to way court might consider same-sex issue
11:06 AM EDT on Thursday, June 12, 2008
By Edward Fitzpatrick
Journal Staff Writer



PROVIDENCE — A Superior Court judge yesterday raised the question of whether it’s constitutional for Rhode Island to block divorces for same-sex couples married in Massachusetts.

Two Providence women, Margaret R. Chambers and Cassandra B. Ormiston, were married in Fall River in 2004 after Massachusetts became the first state to grant marriage licenses to same-sex couples, and in 2006 the couple sought Rhode Island’s first same-sex divorce in Family Court.
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But in a December 2007 decision that drew national attention, a divided state Supreme Court ruled that Family Court lacked jurisdiction to grant the divorce. The majority said that under the 1961 law that created Family Court, the word “marriage” meant just one thing — the union of a man and a woman.

Chambers then filed for divorce in Superior Court and, in a motion, sought to ask the Supreme Court whether Superior Court — as opposed to Family Court — has jurisdiction to dissolve the marriage. But Ormiston opposed that motion and began renting a room in Cambridge, Mass., waiting for a year to pass before she can get divorced there.

Yesterday, Superior Court Judge Patricia A. Hurst dismissed Chambers’ claim for divorce, saying it is clear Superior Court no longer has jurisdiction to grant divorces now that they’re handled in Family Court. And there is no point in posing the jurisdiction question to the Supreme Court, she said.

“If same-sex marriage was not on the legislature’s mind in 1961 when it passed the Family Court Act, then same-sex marriage certainly wasn’t on its mind when the Superior Court was established over half a century earlier in 1905,” Hurst wrote.

But in making the ruling, Hurst raised the question of whether the statute that created Family Court is unconstitutional now that the Supreme Court has interpreted it to say that Family Court cannot grant divorces to same-sex couples.

“The question yet to be asked is whether the Family Court Act, now having been interpreted by the Supreme Court [in the Chambers and Ormiston case] impermissibly deprives spouses in a same-sex marriage to equal protection of law on account of the coincidence in their gender,” Hurst said. “Assuming the legislature and the executive branch continue to ignore this problem, the question will be whether the Family Court Act is unconstitutional for the reason that it violates state constitutional principles of equal protection.”

Hurst said the “net effect” of the Supreme Court ruling “was to preclude an identifiable class of Rhode Island citizens from obtaining the same relief that any other citizens would be entitled to receive under our laws and in our courts but for their gender as viewed in the context of sexual orientation in their marital relationship.”

She noted Family Court can grant divorces to heterosexual couples, regardless of where their marriages were performed, as long the marriages were valid where they took place. She said Family Court regularly grants divorces to heterosexual Rhode Island residents who married in Massachusetts. And she said Family Court has the authority to deal with child custody, child support and visitation matters involving same-sex couples.

But in the wake of the Supreme Court ruling, if a member of a same-sex couple “wishes to settle their property and other rights arising from the marital relationship, she must either move to another state or find one that has no residency requirement,” Hurst wrote. “If her spouse did not also move or agree to waive any personal jurisdiction defense, the attempt to obtain relief from that jurisdiction would likely be futile.”

As a result, Hurst wrote, “A Rhode Island resident having a multitude of legal rights and obligations has nowhere to go to have them resolved, and only because of her gender. On the other hand, if this couple had parented a child together, all issues of child support, custody and visitation would properly be before the Family Court. It makes no sense legally or practically.”

But regardless of the “conundrum” created by the Supreme Court ruling, Hurst said she must follow the majority’s analysis. And, she concluded that, “The Superior Court as constituted by the legislature, like the Family Court, does not have the power to grant or entertain [this] divorce complaint.”

Hurst noted that neither Chambers nor Ormiston has challenged the constitutionality of the Family Court Act in light of the Supreme Court ruling. And she noted that a trial judge, such as herself, cannot challenge the constitutionality of a legislative act without prompting from another party.

But Hurst all but laid out a road map for such a constitutional challenge. “Only the parties can bring that challenge and only upon giving notice to the state of Rhode Island attorney general,” she said. “If and when that challenge is brought in the proper context and in the proper forum, which I think is the Family Court, the Supreme Court can then decide the question.”

Hurst said, “It seems to me that this is a matter needing immediate attention and one that very plainly belongs in the hands of the legislature and the executive branch. They are the only ones that can amend the Family Court Act. The courts can’t do that. I can only imagine the havoc that would ensue if the Rhode Island courts were forced to declare the Family Court Act unconstitutional.”

After the hearing, Chambers’ lawyer, Louis M. Pulner, said, “I’m greatly disappointed in the judge’s decision, but I also recognize she felt she was bound by existing Supreme Court law. Interestingly enough, the judge finds it disdainful that these parties cannot get the relief they seek and suggested the parties here were likely denied equal protection.”

So will he pursue a constitutional challenge? “It’s time to reconnoiter, once again, and consider all other options available to get my client the relief she seeks here in the state of Rhode Island,” Pulner said. Chambers did not attend the hearing.

Ormiston, who attended the hearing, said, “I am delighted with the cogent response and conclusions of Judge Hurst.” She said she cannot afford to continue a legal battle. But, she said, “I hope that a path reveals itself to continue to pursue the matter in the courts of Rhode Island. I do think, from a historical perspective, continuing to seek a just decision here speaks to the people who founded a state where freedom and liberty were benchmarks.”