Even Though Void or Because Void?
A quick online search didn’t lead to the actual documents, but based on the Providence Journal story about the various legal briefs filed in the case of Rhode Island’s granting a same-sex divorce, it appears that just about everybody argued predictably, mainly based on broader perspectives than the narrow question facing the court. The one exception comes from the governor:
Carcieri’s brief — signed by Indiana lawyer James Bopp Jr. and local lawyer Joseph S. Larisa Jr., former Republican Gov. Lincoln C. Almond’s chief of staff — noted state law says divorces can be granted even when marriages are “void or voidable by law.”
“The Family Court can thus proceed with the divorce petition without a response from this court addressing the legality or the validity of the marriage,” the brief said. “Indeed, because of the significance of this issue and the lack of necessity for this court to consider it, the policy of the State of Rhode Island on the issue of same-sex marriage is most properly left to the people to establish through referendum or, at minimum, through the legislative process.”
Matching the quoted language suggests that the following is the relevant statute (emphasis added):
Marriages void or voidable — Civil death or presumption of death. — Divorces from the bond of marriage shall be decreed in case of any marriage originally void or voidable by law, and in case either party is for crime deemed to be or treated as if civilly dead, or, from absence or other circumstances, may be presumed to be actually dead.
Contra Carcieri et al., this language appears to indicate a “because,” not an “even if” — with which I agree, and for which I would welcome the legal consequences. If the court grants the divorce using this law, it seems to me that it would, in effect, be doing so on the grounds that the marriage is void anyway. That would represent a definitive statement that Rhode Island’s public policy does not permit same-sex marriage.