Same-sex Marriage in Rhode Island

Pajamas Media reported yesterday:

A gay couple from Rhode Island has the right to marry in Massachusetts because laws in their home state do not expressly prohibit same-sex marriage, a judge ruled Friday.

Wendy Becker and Mary Norton of Providence argued that a 1913 law that forbids out-of-state residents from marrying in Massachusetts if their marriage would not be permitted in their home state did not apply to them because Rhode Island does not specifically ban gay marriage.

Superior Court Judge Thomas Connolly agreed.

Prior to this decision, same-sex couples outside of Massachusetts could not get married in the state. Citing the 1913 law, Massachusetts Governor Mitt Romney had instructed clerks not to issue marriages to out-of-state same-sex couples. Couples from six neighboring states filed suit, and last march the Massachusetts Supreme Judicial Court ruled that residents of four of the states could not receive marriage licenses because of their home states' laws. However, the court sent the cases regarding New York and Rhode Island back for review. As you may remember, the courts in New York held last summer that marriage was between a man and a woman, but the Rhode Island courts reached an opposite outcome.

I see this as the inevitable next step in same-sex marriage litigation. And apparently, so did the Gay & Lesbian Advocates & Defenders, which represented the plaintiffs in this case. Their next moves will likely be the following: a same-sex couple from Rhode Island will get married in Massachusetts, and upon returning to Rhode Island, they will file suit to have the marriage recognized in that state. Currently, all the Rhode Island statutes contain language such as "bride" and "groom." One possibility is that the Rhode Island high court will rule along with the Massachusetts courts and decide that marriage in that state should include same-sex couples. However, a more likely outcome will be that the Rhode Island courts will hold such unions invalid, due to the Defense of Marriage Act of 1996 (DOMA). That act defines marriage as “a union between one man and one woman” (1 U.S.C. § 7) and prohibits any state or territory from recognizing any relationship between members of the same sex as marriage (28 U.S.C. § 1738C). The focus of same-sex marriage litigation will then turn to the constitutionality of the DOMA, which I fully expect to be struck down as violating th Full Faith and Credit Clause of the Constitution. Many people thought that nation-wide legalization of same-sex marriages was inevitable after the Massachussetts high court's decision in 2004, but not until the Rhode Island decision was the path to that inevitability so clear.