Source: Providence Journal, Associated Press via Boston Globe
PROVIDENCE, Rhode Island -- A state trial court judge here dismissed a case from a lesbian couple married in Massachusetts who are trying to obtain a divorce in Rhode Island. But the judge also raised serious questions about the constitutionality of Rhode Island's current laws regarding divorce.
In her ruling Superior Court Judge Patricia A. Hurst asked if the act that established the Family Court, which is charged with handling divorces, "impermissibly deprives spouses in a same-sex marriage to equal protection of law on account of the coincidence in their gender," Providence Journal reports.
In her strongly worded ruling, Hurst laid out a legal road map for a constitutional challenge to the state's Family Court Act, but also urged the legislature to address the issues before they make their way through the courts.
Although the judge explained that she didn't have the jurisdiction to overturn the law with this case, she warned that it is now vulnerable to a constitutional challenge.
"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 noted that neither neither party in the divorce proceeding has challenged the constitutionality of the Family Court Act in light of a Supreme Court ruling on their case. And she noted that a trial judge, such as herself, cannot challenge the constitutionality of a legislative act without prompting from another party, the Journal reports.
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."
She said the law could be challenged in family court and ultimately ruled on by the Supreme Court.
The case stems from two Providence women, Margaret R. Chambers and Cassandra B. Ormiston, who married in Fall River, Massachusetts in 2004. In 2006 the couple sought Rhode Island's first same-sex divorce in Family Court.
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.
After the Supreme Court decision, Chambers 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.
Hurst reluctantly 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, Providence Journal reports.
Louis Pulner, a lawyer for Chambers, said he was disappointed with Hurst's decision and his client would pursue other options to end her marriage, Associated Press reports.
But, he added, "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."
Providence Journal reports that Pulner said he's not yet ready to say what the next step for Chambers will be. "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.
In her ruling, Hurst noted that 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, the Journal reports.
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."
Full article: Judge points to way court might consider same-sex issue| Providence Journal
Judge raises constitutional issue in R.I. gay divorce case | Boston Globe (AP)