The Judiciary Continues to Shine Its Murky Light on Marriage
Rhode Island’s marriage law is astonishingly specific when it comes to which relatives men may not marry:
Men forbidden to marry kindred. — No man shall marry his mother, grandmother, daughter, son’s daughter, daughter’s daughter, stepmother, grandfather’s wife, son’s wife, son’s son’s wife, daughter’s son’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s son’s daughter, wife’s daughter’s daughter, sister, brother’s daughter, sister’s daughter, father’s sister, or mother’s sister.
Indeed, the legislature is so specific as to add an entirely separate section to spell out the same for women:
Women forbidden to marry kindred. — No woman shall marry her father, grandfather, son, son’s son, daughter’s son, stepfather, grandmother’s husband, daughter’s husband, son’s daughter’s husband, daughter’s daughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s son’s son, husband’s daughter’s son, brother, brother’s son, sister’s son, father’s brother, or mother’s brother.
And it added yet another section to affirm the status of marriages if somehow contracted in contravention of the law:
Incestuous marriages void. — If any man or woman intermarries within the degrees stated in 15-1-1 or 15-1-2, the marriage shall be null and void.
So why, given all of this specificity, would the Rhode Island legislatures of the past not have specified whether men could marry men and women women? Well, a person not set on bending culture and law to his or her social ideology might reasonably suggest that the legislatures of yore did not deem it necessary to legislate what they thought to be a clear and unambiguous definition.
Unfortunately, the Massachusetts Supreme Judicial Court is not, apparently, populated by reasonable people who are not set on bending culture and law to their social ideology. When determining whether a Massachusetts law that denies the granting of marriages to couples whose home states would forbid them, that court determined (PDF):
… that same-sex marriage is not prohibited in Rhode Island. No evidence was introduced before this Court of a constitutional amendment, statute, or controlling appellate decision from Rhode Island that explicitly deems void or otherwise expressly forbids same-sex marriage; and, after an exhaustive search, this Court has found no such prohibitory positive law.
The problem, it seems to me, is one that is sure to pop up whenever a court declares the English language to be void: we imaginative creatures can concoct all sorts of things that are not explicitly stated in amendment, statute, or appellate decision for the reason that nobody ever believed they had to be. It’s possible that some obscure case would prove me wrong, but I don’t see how the Massachusetts SJC could conclude otherwise than that Rhode Island does not prohibit men from marrying their fathers, grandfathers, sons, and so on. (Indeed, a very quick look at Massachusetts’ laws reveals the same for that state.)
Of course, what I’ve found in discussions on this topic before is that those who disagree with me on principle, having leveraged the absence of specific language to get their way, will fall back on the vagaries of “understanding” in order to reapply historical standards and intentions to the newly created “marriages.” In other words, once a court has asserted that the government has previously acted through inaction in such a way as to leave same-sex marriages possible, it then will turn around and interpret the statutes’ failure to ban same-sex incestuous marriages as clearly an oversight that needn’t be perpetuated in the law.
Why such a lackadaisical legislature would feel it necessary to write and enact equivalent statutes for each gender is a question beyond my ability to answer. Sadly, I fear that the Rhode Island judiciary, which will soon be poring over newly minted Massachusetts marriage licenses, will offer their rubber stamp without even asking the question.