While I have no problem with the concept of gay marriage (the state should not be involved in religious marriage; and any two people should be able to enter any civil contract they want); if we are in fact a nation of laws, effectively re-writing the laws through judicial activism (and yes, that is very explicitly what is happening) is both morally wrong (because it abrogates the process), and a practical disaster.
Leaving aside the moral argument, we need to address the consequences of living in a federal republic. Although gay marriage advocates have repeatedly insisted that instituting gay marriage on a state by state basis would not cause constitutional and interstate compact issues; anyone with any knowledge of interstate law, or the concept of federalism could see that argument is false on its face.
From the first legal same sex marriage in Massachusetts (and to a lesser extent civil unions in Vermont), there have been legal implications in other states. There are issues of marriage licenses in general being honored (full faith and credit), medical insurance, inheritance rights, property rights, medical control, and of course the big one: child custody.
Lawsuits have already been instituted in other states over all of these issues, in particular survivors rights; but 'til now a divorce case hasn't hit the public eye.
Well, that just changed; and I wish I could say I didn't see it coming, but I think we all did...
In this case, the justices are in a bit of a bind; because they can attempt to qualify their ruling all they want by declaring "we'll give you a divorce, but that doesn't mean you were ever really married"; but that isn't going to fly.
Married Gay Couple Seeks Right to Divorce in Rhode Island
Tuesday, October 09, 2007
PROVIDENCE, R.I. — A lesbian couple married in Massachusetts should have the same right as heterosexual couples to now divorce in Rhode Island, lawyers for the women told the state's highest court on Tuesday.
Cassandra Ormiston and Margaret Chambers wed in 2004 soon after Massachusetts legalized same-sex marriages. They filed for divorce last year in their home state of Rhode Island, where the law is silent on whether same-sex marriages are legal.
It is believed to be the state's first same-sex divorce case.
If the women can't divorce in Rhode Island, their lawyers said the only legal avenue available to them would be for at least one to move to Massachusetts and live there long enough to obtain a divorce.
"It is an absolutely unfair burden," Ormiston said outside court after Tuesday's arguments before the Rhode Island Supreme Court. "It is a burden no one else is asked to bear, and it is something I will not do."
Lawyers for the women told the Supreme Court the only question to consider was whether Rhode Island could recognize a valid same-sex marriage from another state for the sole purpose of granting a divorce petition.
They stressed the case has no bearing on whether gay couples could get married in Rhode Island, or on whether a same-sex marriage would be recognized for other purposes.
"You have a valid marriage in the state of Massachusetts," Louis Pulner, an attorney for Chambers, told the justices. "No one is asking the court to address the question of whether such marriages would be valid in Rhode Island."
In September 2006, a Massachusetts judge decided same-sex couples from Rhode Island could marry in Massachusetts because nothing in Rhode Island law specifically banned gay marriage. But the courts and the legislature in Rhode Island have not taken any action to recognize same-sex marriages performed in Massachusetts.
Attorney General Patrick Lynch earlier this year issued a nonbinding advisory opinion saying the state would recognize same-sex marriages performed in Massachusetts.
Nancy Palmisciano, a lawyer for Ormiston, said Rhode Island routinely treats as valid heterosexual marriages performed in other states and even in other countries. She said when she recently handled the divorce of a couple from China, no one questioned the validity of their marriage certificate issued there.
"Here we have two American women who have not been able to push their divorce forward because they happen to be members of the same sex," Palmisciano said.
Chambers and Ormiston married in Fall River, Mass., in May 2004 in a ceremony solemnized by a justice of the peace. Massachusetts is the only state to legalize same-sex marriages.
Chambers filed for a divorce last October, citing irreconcilable differences.
Two months later, Rhode Island's chief family court judge asked the state Supreme Court for guidance on whether he has the authority to handle a same-sex divorce. The court agreed to weigh in and invited Rhode Island's legislative leaders, governor and state attorney general to submit legal briefs detailing their position.
The justices did not indicate when they would rule.
Such a ruling would be ridiculous on its face, and would properly be struck down as arbitrary and capricious. There would be no valid legal principle to cover this tissue thin justification, and it would head to the supreme court as a giant mess.
Tough cases make bad law; and from where I'm sitting, this looks about like 10 year old shoeleather.