Leaving the Door Open on the Way Out

It ought to raise suspicions about their cause when marriage advocates seek to advance it through divorce:

[Karen L. Loewy, staff attorney for Gay & Lesbian Advocates & Defenders] said Rhode Island recognizes marriages validly entered in other jurisdictions, unless there’s a strong public policy reason not to, and she said there’s no such reason in this case. She said it’s the common practice of comity, in which one state recognizes the laws of another.

The sticky area with same-sex marriage — which one is apt to find with any issue that involves the assertion of a wholly new definition of legal terms — is that the “strong public policy reason not to” derives from the fact that, in Rhode Island, marriage is a relationship between a man and a woman. Note the Rhode Island General law respecting marriage licenses:

15-2-1 License required – Proof of divorce. – (a) Persons intending to be joined together in marriage in this state must first obtain a license from the clerk of the town or city in which:
(1) The female party to the proposed marriage resides; or in the city or town in which
(2) The male party resides, if the female party is a nonresident of this state; or in the city or town in which
(3) The proposed marriage is to be performed, if both parties are nonresidents of this state.

If Chief Family Court Judge Jeremiah S. Jeremiah Jr. decides to grant the divorce, he will have — despite all of the language throughout Rhode Island law proving marriage to be an opposite-sex affair — acknowledged that a marriage can indeed exist when the spouses are of the same sex. Combine such a decision with the Massachusetts Supreme Judicial Court’s ruling that Rhode Island need not be seen as forbidding same-sex marriages for the purposes of Massachusetts law, and same-sex marriage will have been successfully imported to Rhode Island purely via judicial maneuvering.

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Greg
Greg
14 years ago

Here’s an idea. Let’s let the southern wacko wing of the party get all in a tizzy about gays getting married.
Attempting to tell gays that they can’t marry is like telling blacks that they’re only 3/5ths of a full human being and I’m getting a little tired of it.
Fifty years from now, our grandkids are going to look back at us and marvel at how neanderthal we are on this subject.
Republicans are WRONG on this subject and we’re going to lose. This is NOT the hill I want the party to die on.

brassband
brassband
14 years ago

One point that has been overlooked here . . . R.I. recognizes common law marriage.
Because marriage here is not strictly statutory (as it is in Mass. and many other states), I think that there is a much stronger argument here in support of a judicial recognition of such marriages.

Justin Katz
14 years ago

Fifty years from now, our grandkids are going to look back at us and marvel at how neanderthal we are on this subject.

Perhaps. And perhaps in another fifty years, our great great grandkids — having grown up in a society without the social and cultural benefits that marriage has provided — will look back at us and marvel at how prescient we were. I’m less concerned with what my progeny will think of me than with doing what I think is right for them. You disagree, apparently, but I’ve yet to hear an argument on that end that I find persuasive.
Similarly, I’m less concerned with the demise of the Republican party than with the demise of Western culture. Be that as it may, however, it seems to me that you’ve drawn too tight a boundary around this issue. If Republicans “lose” on this issue, it looks likely to be because the courts have forced it through, and that represents another battle worth fighting.

Andrew
14 years ago

Greg,
If what you say is true, then why do gay marriage advocates keep trying to implement gay marriage via the judiciary (which is the main point of the main post, by the way), instead of making a simple change in the law via the legislative process?

Greg
Greg
14 years ago

Probably for the same reasons that the courts forced desegregation through. The people are too fixed in their old ways to accept that they’re wrong.
What we’re ultimately talking about is telling a group of humans that they’re not as human as the rest of us and I find that disgusting.
To say that gays can’t be good parents because they’re deviants ignores the fact that many of us, in our own bedrooms, are also pretty freakin deviant. Maybe the government should also make the determination that heteros who engage in S&M are not fit to be parents and take those kids away.

Justin Katz
14 years ago

Brassband,
I don’t have time for a more full investigation and explanation (although I do recall writing on common-law aspects of same-sex marriage over on Dust in the Light if you care to look), but I don’t think it adds as much strength as you suggest. Basically, common-law considerations come into play when determining whether a marriage was initiated, not what a marriage is. (Just imagine the precedent if, for the sake of same-sex marriage, common-law marriages didn’t have to be defined in accordance with statutory rules!)
Time limitations notwithstanding, it’s worth noting something from the RI precedent on common-law marriages that I found through a quick search. Text from the 1970 case Sardonis v. Sardonis, as cited on page five of this PDF:

… the existence of a common-law marriage must be “established by clear and convincing evidence that the parties seriously intended to enter into the husband-wife relationship.”

This language is everywhere in marital law, for the straightforward reason that marriage denotes a relationship between a man and a woman. As much as activists and the squeamish among us might like it to be the case, we cannot just close our eyes and pretend it isn’t.

Justin Katz
14 years ago

Greg,
Responses to all of your points have been made at length and should be easy to find, if you look. In brief:
1. The courts’ actions on racial matters enforced laws that already existed as a product of legislation. In other words, the judiciary is not to be so advanced in telling the people that they are “too fixed in their old ways to accept that they’re wrong” as to take legislation upon themselves.
2. On the “less than human count,” the contexts and actualities are entirely different between race and sexual orientation. For one thing, it’s quite a different thing to tell a black man and woman that they are not a man and a woman than to tell two gay men that they are not a man and woman.
3. I didn’t “say that gays can’t be good parents,” and I’ve certainly never advocated that the government take children away from parents that they already have.

Rhody
Rhody
14 years ago

It would be a damned shame if the inevitable ugly showdown over gay marriage in Rhode Island is brought on by a divorce request. I just wonder how much longer the General Assembly can avoid the issue.

Tom W
Tom W
14 years ago

Pun intended, don’t think for a second that this divorce isn’t a gambit to force recognition of homosexual marriage through a “back door.”
>> Attempting to tell gays that they can’t marry is like telling blacks that they’re only 3/5ths of a full human being and I’m getting a little tired of it.
Greg,
That argument is specious. Race is a normal variation within the human species. Homosexuality is an abnormality – “biology 101” tells us that. A certain statistical regularity of its occurrence does not make it normal, only statistically predictable.
This doesn’t mean that homosexuals are evil, to be despised, or to be discriminated against in the workplace or society in general. Neither does it mean that they can’t be nice people or productive members of society – in this they are just as “good” or “bad” as the rest of us. It just means that they are individuals afflicted with an unfortunate condition – after all, how many parents, if given the choice, would choose to have their child born homosexual?
But “tolerance” or “sympathy” toward homosexuals does it mean that society should pretend that the abnormality “isn’t.” Even less does it mean that society, through marriage, should not only engage in such a pretense, but also lend it society’s imprimatur.

george
george
14 years ago

“It just means that they are individuals afflicted with an unfortunate condition – after all, how many parents, if given the choice, would choose to have their child born homosexual?”
You make it sound like a mental illness. These people don’t have a choice whether they are gay or not They are attracted to members of the opposite sex that is it. Just because you think they are “afflicted” does not mean they should be denied rights.

Tom W
Tom W
14 years ago

>>You make it sound like a mental illness. These people don’t have a choice whether they are gay or not They are attracted to members of the opposite sex that is it. Just because you think they are “afflicted” does not mean they should be denied rights. I didn’t say that they “chose” to be homosexual. Quite the opposite; my statement regarding “if parents had a choice” recognizes that homosexuality presumably reflects something occurring during gestation, not a “choice.” I merely stated the obvious: on a biological basis “same sex” attraction is inherently abnormal. Homosexuality does not affect cognitive ability, and so is not a “mental illness” as the term is usually used; however to the extent that sexual attraction is “mental,” then (I suppose) homosexuality could technically be classified as a “mental illness.” I prefer not to use that term, as it is way too “loaded” because, as said, its usual usage conveys a negative connotation that I think is unwarranted and unfair. Marriage is not a “right.” If it were, there would be no legal need for a marriage license – by definition a “license” is a grant of permission to do something that one does not already have the right to do. To demand that society give “license,” and thus its imprimatur, to something inherently abnormal – merely because certain people are born that way – I think asks / demands too much. Homosexuals are not barred or impeded from having the relationships they “desire” – this whole “right to marriage” / “civil rights” agenda if merely a smokescreen in an effort to institutionalize a social fiction that homosexuality is a normal human variation similar to race or hair color or eye color and thus “normal.” While I can understand the desire of homosexuals to have the… Read more »

george
george
14 years ago

homosexuality could be a perfectly normal biological function and that is to make sure the population stays in control. You are assuming that only biological function of people is to have a family where the opposite could be true for population control.
You say they are not barred from having the relationshops they desire but in fact they are because this is what the debate is about.

smmtheory
smmtheory
14 years ago

They do indeed have a choice about whether to practice homosexuality or not. They also have a choice about to whom they allow their attractions to be sexual. Homosexuality is not a normal biological function for population control, because there is already a perfectly natural and normal biological function of abstinence from sex that fulfills the utility of controlling population levels even more effectively than homosexuality. They are not barred from having the relationships they desire because marriage is not a requirement to have a relationship.

SusanD
SusanD
14 years ago

If this is accomplished by judicial fiat, by the way, couldn’t the legislature pass a law against it? I realize that showing some integrity by openly committing to one side or the other of such a controversial issue would be abhorant to many lawmakers …
As to the issue itself. My initial reaction tends towards Greg’s view. But the people that I respect most disagree with this stance. So I do not know what to think.
1. Are we all okay with civil unions or is that camel’s nose under the tent?
2. Let’s talk about the potential down side.
We seem to agree that being gay is not voluntary nor can you convert someone to homosexuality. Historically, gays have never constituted more than, what, 10% of the population, if that? So no danger to the propagation of the species is posed – gay marriage would not “encourage” people to become gay.
Justin said we cannot see fifty years into the future. But can someone please try to articulate the potential negatives of gay marriage? And civil unions, if there is an objection to them.

Justin Katz
14 years ago

Susan,
I’ve articulated repeatedly the potential negatives. The upshot is that we’re not talking about individuals, but about a class of people, and in order to incorporate them into marriage, the meaning of the institution must change, and it looks likely to do so in such a way as to cause an institution-ending slip of definition.
That is why I, for one, am “okay with civil unions” — as long as they come with the stipulation that they not be defined with reference to marriage. In other words, legislatures cannot grant access to civil unions, which “grant all the rights included in marriage,” or similar language. Each state should define for itself what rights and privileges civil unions should have.
Incidentally, I don’t “agree that being gay is not voluntary nor can you convert someone to homosexuality.” I think there are a range of circumstances and developmental issues that result in homosexuality — from those for whom the orientation is so ingrained that it may as well have been genetic, to those whom traumatic circumstances turned toward homosexuality during formative years, to those who either choose it or gravitate toward it lightly. In my view, society has to tread lightly to offer as much compassion as possible to the first group without tripping up “waverers” in the middle group or providing incentives for the former group.
Not surprisingly, I’m not particularly persuaded by historical percentages on this matter. Unthinking people might declare me ignorant or bigotted for saying so, but I’d expect an increase in self-identifying homosexuals were something like same-sex marriage — or over-generous civil unions — to become internalized within the law and culture.

Tom W
Tom W
14 years ago

>>homosexuality could be a perfectly normal biological function and that is to make sure the population stays in control. You are assuming that only biological function of people is to have a family where the opposite could be true for population control.
Well, perhaps if there were data indicating that, e.g., overpopulated China had higher levels of homosexuality than less-populated countries, you might be on to something. I suspect that this is not the case …
>>You say they are not barred from having the relationshops they desire but in fact they are because this is what the debate is about.
That homosexuals – except in Massachusetts, for now – cannot engage in marriage (at least not with other homosexuals) may be considered a deprivation in some circles; but one-night stands, dating and cohabitating are all on the menu. So homosexuals are not barred from having the “relationships” they desire, merely from enjoying society’s encouragement of, and blessings upon, those “relationships.”

Chairm
Chairm
14 years ago

[Quote] Attempting to tell gays that they can’t marry is like telling blacks that they’re only 3/5ths of a full human being and I’m getting a little tired of it. […] What we’re ultimately talking about is telling a group of humans that they’re not as human as the rest of us and I find that disgusting. [/Quote] First, a nitpick: Slavery was not mentioned in the Constitution. the 3/5th provision was imposed against the wishes of the slave states which sought representation in the federal government on the basis of the total number of residents, slave and free. It was the anti-slavery side that wanted the 3/5th rule so as to dilute the influence of the slave states in the new federal system of representative democracy. So your analogy is false. Stop being tired by it. As for your complaint about telling people they are subhuman, you also miss the point. There is one human race and it is two-sexed. The nature of human generativity is both-sexed. Marriage combines A) the integration of the sexes with the B) the contingency for responsible procreation. As Justin has said elsewhere, the social institution bonds men and women and the children they create together. This is extrinsic to all one-sex combinations, including those which are deemed homosexual relationships. Marriage is not based on adoption. Nor is it based third party procreation (i.e. parental relinquishment). Rather the core of marriage is expressed in the first principle of responsible procreation: each of us, as part of a both-sexed couple, is responsible for the children we create. Marriage recognition arises from the nature of humankind, the nature of human generativity, and the social force of lifelong commitments to the mother, or the father, of one’s offspring — and that translates into the presumptive lifelong commitment… Read more »

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