To harm, to victimize, and to destroy: the ugly reason why the Chambers majority opinion was so right.

AuthorSkinner, Matthew J.
PositionSame-sex marriage - Rhode Island

"[A]ny serious effort on the part of judges to discover the thought or reference behind the language of a legislative enactment must be based upon a painstaking effort to reproduce the setting or context in which the statutory words were employed." (1)

"The homosexual in 1961 was smothered by law." (2)

  1. INTRODUCTION

    In December 2007, the Supreme Court of Rhode Island decided a case widely anticipated since the real possibility of state-sanctioned same-sex marriages first entered the American political consciousness in the 1990s. (3) After May 17, 2004 (and, actually, even before then based on developments in several foreign nations), (4) when the Commonwealth of Massachusetts first began issuing marriage licenses to same-sex couples pursuant to the mandate of the Supreme Judicial Court of Massachusetts's decision in Goodridge v. Department of Public Health, (5) legal commentators knew it was only a matter of time before other states in the Union would be confronted by a couple seeking legal recognition of a same-sex marriage obtained elsewhere. (6) With Chambers v. Ormiston, (7) the Supreme Court of Rhode Island became the first state high court in the nation to have this thorny and complicated issue come before it.

    Beyond being a case of first impression, the court's task in the case was complicated by other legal complexities (or lack thereof) almost completely unique to Rhode Island. At the time the case reached the high court, Rhode Island was one of only two states left (the other being New Mexico) that either had no explicit constitutional or statutory definition of marriage or had not yet faced a constitutional challenge and resolution by the state's highest court concerning the exclusion of same-sex couples from the state's marriage laws. (8) The only real legal precedent available to the Supreme Court of Rhode Island in state law was Ex parte Chace, (9) a 1904 case involving the validity of an opposite-sex marriage obtained by a Rhode Island couple in Massachusetts purportedly in violation of Rhode Island's guardianship laws. (10) Operating in such a legal vacuum, the court was ultimately presented with a total of twenty-seven briefs, by the parties and numerous interested amici, over three rounds of briefing. (11)

    In a three-to-two split, (12) the court ultimately concluded that, based on the definition of "marriage" understood by Rhode Island state legislators when they adopted the statute creating a family court in 1961, the Rhode Island Family Court today did not have jurisdiction to entertain a divorce petition of a same-sex couple married in Massachusetts in 2004 without further legislative action. (13) Notably, the court's interpretation of the statute relied exclusively on definitions from dictionaries published in and around 1961. (14) Using this analysis, the court was able to completely avoid addressing the much more complex subjects (15) of comity, (16) the Full Faith and Credit Clause of the United States Constitution, (17) and the Defense of Marriage Act. (18)

    This Comment does not serve to present the legal framework that could or should have applied. (19) However, considering the historic nature of the case and the certainty that other same-sex marriage recognition cases will emerge in other states (leading their courts to look to the Rhode Island high court's disposition), this Comment will critically confront the analysis used in the court's majority opinion. In particular, there is a rich historical gap that is almost completely absent from their opinion, but which is nonetheless absolutely necessary to truly accept why the conclusion that the court reached was "so obvious." (20)

    Essentially, the court cannot hearken back to this period to import a purportedly benign and uncomplicated definition of marriage without also simultaneously importing the horrific discriminatory and targeting practices that defined the experience of gay Americans of the time. This oft-forgotten history no doubt at least partially explains why the court could not find a dictionary that offered as a possibility that the institution of marriage could include same-sex couples, even though some gays and lesbians of the time had in fact started to use the term in that way.

    In Part II, a short background of events leading up to the Supreme Court of Rhode Island's decision is provided, followed by a discussion of the majority's already briefly noted analysis and rationale in greater detail. In Part III, there is an examination of the court's use of dictionaries and a presentation of primary source evidence that other usages of the word "marriage" were to be found around 1961, although not reflected in dictionaries. Next, in Part IV, general and then Rhode Island-specific historical pictures of the experience of gays and lesbians at the time around the adoption of the statute at question in this case are outlined. These pictures actually serve to vindicate the core assertion made in the Chambers majority opinion, but that vindication also comes at the price of (or what should be) incredible shame about how the Rhode Island state legislators, if general American attitudes and even some Rhode Island-specific history of the time are any guide, felt about how gays and lesbians should be treated "some forty-six years ago." (21)

    The legitimacy of the majority's decision is tainted not because it is incorrect, but because the reason it is correct invokes such a disgusting history that any reasonable jurist today would (or should) assumedly shirk from using it as the underlying validation for a modern decision. Finally, Part V concludes with a brief commentary noting the effect this kind of legal justification has on the modern gay community. Unfortunately, the court's glossing over of the true historical justification of its decision does not make the result here any less disheartening or damaging. Hopefully, then, this exercise can in some way serve to prevent another court from following a similar path in the future.

  2. THE DECISION

    Margaret Chambers and Cassandra Ormiston crossed the Rhode Island-Massachusetts border and obtained a marriage license in Fall River, Massachusetts on May 26, 2004, (22) apparently finding a municipal clerk that was not honoring Massachusetts Governor Mitt Romney's order at the time to desist from issuing licenses to same-sex couples from outside of Massachusetts. (23) A justice of the peace performed a marriage ceremony, and the couple returned to Rhode Island. (24)

    When Chambers filed a divorce petition in October 2006, the chief judge of the family court decided to send a certified question (25) to ask the supreme court if his court had jurisdiction to dissolve a same-sex marriage. (26) After some clarification from the family court, the supreme court heard oral argument in October 2007 and issued its decision in December 2007. (27)

    Justice William P. Robinson III, writing for the majority that included Chief Justice Frank J. Williams and Justice Francis X. Flaherty, immediately began his analysis by noting that upon reflection, he and his two joining colleagues decided that the crucial issue in this case was "what did the word ['marriage'] mean at the time that the members of the General Assembly enacted the statute [creating the family court and defining its jurisdiction]." (28)

    Starting his statutory analysis, Justice Robinson invoked the typical plain meaning rule and declared that "[i]t is clear to us that in this instance we are not confronted with an ambiguous statute;" consequently, all this exercise required was a "determin[ation of] what the words in this statute were intended to mean." (29) Specifically, the "crucial" element in Justice Robinson's determination was reaching "the ordinary meaning as of the time of enactment," because although "[i]t is possible that today's members of the General Assembly might have an understanding of the term 'marriage' that differs from the understanding of those legislators who enacted [the statute] in 1961," the court cannot "speculate as to what some other not-yet-enacted statute might say or mean." (30)

    His judicial task laid out and justified, Justice Robinson then attempted to accomplish it and determine meaning at the time of enactment exclusively by citation to "contemporaneous" dictionary definitions, a method he described as "appropriate and often helpful." (31) Based on three dictionaries--the first published in 1961, the second published in 1955, and the third published in 1963 (32)--he confidently declared that "there is absolutely no reason to believe that, when the act creating the Family Court became law in 1961, the legislators understood the word marriage to refer to any state other than 'the state of being united to a person of the opposite sex,"' since "the primary dictionary definition of marriage [in each of the dictionaries cited] refers only to a union between a man and a woman." (33) And, just as importantly, Justice Robinson could find "absolutely no indication in any of the dictionary definitions that a union between two persons of the same sex was any part of the definitional schema." (34)

    Satisfied with this conclusion, Justice Robinson next found it "pertinent to note" that Chief Justice Marshall admitted in her Goodridge majority opinion to making '"a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries.'" (35) With that in mind, Justice Robinson's necessary analysis was now all but complete:

    We have concluded that [section] 8-10-3(a) is unambiguous, and we have ascertained its plain meaning by looking to the meaning of the word "marriage" at the time of the statute's enactment in 1961--some forty-six years ago. Once having arrived at that plain meaning, our role is to apply it to the situation at hand. The plain meaning of the word "marriage" in [section] 8-10-3(a) indicates to us that the Family Court is...

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