Legal Formalism Triumphs in Rhode Island

Today the Rhode Island Supreme Court announced its 3-2 decision in Chambers v. Ormiston, 2007 WL 4276781, holding that the Rhode Island Family Court may not "recognize" for purposes of the state's Family Court Act the marriage between two lesbians that was performed in Massachusetts in 2004 for purposes of granting them a divorce.  The opinion for the court is a triumph of legal formalism, sharply criticized by the dissenters as leaving the parties in a "legal limbo."

Margaret Chambers and Cassandra Ormiston were married in Fall River, Massachusetts, on May 26, 2004, shortly after the Massachusetts Supreme Judicial Court's decision in the Goodridge case went into effect.  They had to move fast, because then-Governor Mitt Romney was threatening to sue local clerks who issued licenses and performed weddings for out-of-state same-sex couples.  Subsequent litigation in Massachusetts, however, resulted in the rather odd situation that residents of Rhode Island, but of no other state, may contract same-sex marriages in Massachusetts.  The problem, however, is in getting unhitched.

Massachusetts will only exercise jurisdiction over a divorce petition that involves one of its own residents.  So if a same-sex couple from Rhode Island gets married in Massachusetts but continues to reside in Rhode Island, one of them would have to move to Massachusetts and establish residence there in order to be able to get the marriage dissolved legally.... unless, of course, the courts of their home state, Rhode Island, would be willing to handle the divorce case.

In 1961, Rhode Island established its Family Court through the enactment of a statute, and gave it jurisdiction "to hear and determine all petitions for divorce from the bond of marriage..." (among other things).  In 2006, Chambers and Ormiston decided to divorce and sought to do so through an action in the Rhode Island Family Court.  The Family Court judge, expressing uncertainty about his jurisdiction to dissolve a Massachusetts same-sex marriage, asked the state Supreme Court to rule on the jurisdictional question.  After some back and forth between the two courts, the Supreme Court finally agreed to do so, and today's ridiculous decision is the result.

In essence, the Court violated one of the basic rules of statutory interpretation - that no provision is to be construed in isolation, but only as a part of the whole statute in order to accomplish the legislative purpose.  The opinion for the court by Justice Robinson bases its ruling on the proposition that the word "marriage" as used in the provision quoted above must be given the definition it would have for R.I. state legislators who passed the Family Court statute in 1961, and that - unambiguously - is "the state of being united to a person of the opposite sex," a definiton taken from a contemporary general dictionary, and confirmed by references to other dictionaries published from the mid-1950s to the mid-1960s.  Thus, according to Robinson, speaking for the court, when the legislature gave the Family Court jurisdiction to handle divorces, it was implicitly limiting that jurisdiction to divorces involving different-sex couples because the reference to "marriage" in that provision has the effect of limiting the court's jurisdiction. 

This, of course, entirely misses the point, as the dissent observes.  The majority seems to think that because a particular marriage - in this case, a same-sex marriage - is not the kind of marriage approved or accepted or envisioned by R.I. legislators in 1961 (or today, for that matter), then their decision to give the Family Court jurisdiction to receive petitions for divorces from "marriage" must be limited to the kinds of marriages they were then thinking about.  But, as dissenting Justice Suttell points out, R.I. courts have jurisdiction to grant divorces regardless whether R.I. law would consider the marriage in question to be valid.  For example, an incestuous marriage contracted in another state would be considered void and illegal in R.I., but that would not deprive a R.I. Family Court judge from granting a divorce to a R.I. resident who was party to such a marriage.  Similarly, a marriage that might be void because a party was underage or was incapable of giving valid consent to marry, or a polygamous marriage...  in any of these cases, a party finding themselves in such a marriage would be entitled to petition for a divorce.  That an incidental part of the case would be a decision by the Family Court that the marriage was void from its inception would not serve to deprive the Family Court of jurisdiction to "declare the status of the parties."

Furthermore, as Justice Suttell points out, Rhode Island has traditionally considered to be valid any marriage that was valid where it was performed.  By its dictionary-based jurisprudence, the majority of the court in this case has created a "gay exception" to a venerable rule, for no articulated reason than that a dictionary in 1961 would not consider a different-sex marriage to fall within the common meaning of the word. 

The majority of the court having decided this case solely as a matter of interpretation of the Family Court statute, the court made no ruling on the potential applicability of the Full Faith and Credit Clause, or the common law doctrine of comity under which states recognize marriages performed in other states, or at least are willing to grant divorces to people who were married in other states.

Justice Suttell, invoking an ancient Rhode Island Supreme Court precedent, State v. Drowne, 20 R.I. 302 (1897), observed that "we are bound to construe a statute in the most beneficial way which its language will permit, in order to prevent inconsistency or injustice."  "The result of the majority's opinion," observes the dissenters, "places the parties, and all those simlarly situated, in an untenable position.  They are denied access to the Family Court and thus are left in a virtual legal limbo, unable to extricate themselves from a legal relationship they no longer find congenial without establishing the domicile and residency requirements of some other jurisdiction.  Such a result runs afoul of the 'matter of duty which the courts owe to the public to declare the situation of the parties,' and, in our opinion, is not required by the language" of the Family Court statute.

Indeed, the dissenters point out, as recently as 2000 the R.I. Supreme Court was willing to construe the Uniform Law on Paternity to determine the existence of a de facto parent-and-child relationship with a lesbian co-parent and, the dissenters note, the state legislature has already recognized some legal status for same-sex partners in several instances.

Both majority and dissent note that since the opinion is based on statutory interpretation, it can be simply overruled by the legislature through an amendment to the Family Court statute.  No state constitutional amendment is required.  Actually, the R.I. legislature has proposals pending before it to allow same-sex marriages, and that is what would really make sense, given the ease with which R.I. same-sex couples can go up to Massachusetts to get married.  The current situation deprives the R.I. catering industry of a substantial slice of business...

Comments

[Chairm]

Professor, since they are not married, why do they need a divorce to split-up?

[Art Leonard]

They were legally married in Massachusetts and remain married for purposes of Massachusetts law. They wanted to terminate that marriage. People from R.I. tend to go up to Massachusetts with some frequency. If one of them happened to be in Massachusetts, they would be considered married there if they were not legally divorced. The problem is that a Massachusetts court would not divorce them unless one moves to Massachusetts and estalishes their residence there.

[Chairm]

Yes, I understand the twist.

However, does not Massachusetts require residency and since these women were, and are, nonresidents, their marriage is only symbolic, in Rhode Island, and not permitted in Massachusetts.

[Art Leonard]

No, that's the point. Massachusetts does not require residency. But there is a Massachusetts statute providing that marriage licenses will not be issued to out-of-state couples whose marriage would be prohibited in their home state.

The Mass S.J.C. rejected a constitutional challenge to this statute, but suggested that couples from a state whose laws did not affirmatively prohibit same-sex marriage could marry in Massachusetts, even though their home state did not affirmatively allow same-sex marriages. (Hyper-literal reading of the statute, which dates from 1913 and was intended to keep Massachusetts from became a marriage destination for mixed race couples from other states.)

After the SJC ruling, a trial judge ruled that because Rhode Island does not have a constitutional amendment banning same sex marriage or a state-level defense of marriage act, and because its marriage law is not explicit on the point, same-sex couples from R.I. can marry in Massachusetts. Therefore, the marriage of this R.I. couple in the case decided Friday is legal and recognized in Massachusetts.

[Chairm]

I thought the 1913 law also covers differences regarding age and parental consent and that it remains valid for those sorts of reasons.

The Goodridge opinion acknowledged the numerous references to both sexes in the marriage law as meaning that SSM was not marriage in Massachusetts. That's why the court's majority voted to affirmatively change the definition.

Rhode Island's laws are much the same. Marriage is both-sexed there.

Further, the majority and a concurring opinion in the Goodridge case cited the 1913 law when providing assurances that their change in definition would not add ambiguity.

How did things get turned upside down so that a neighboring state, like Rhode Island, must be presumed to recognize what the Goodridge opinion only very recently imposed?

It seems unreasonable to expect each and every state in the union to react in positive law to the Massachusetts high court's interpetation of Massachusetts' state constitution.

The pro-SSM folks have argued that such explicit rejection is not needed in other states -- at least they say this during state amendment campaigns.

They argue that unless a court changes things, nothing needs to be done, from the point of view of those who favor the man-woman criterion of marriage.

Professor, does it not appear to you that, in effect, this is like trying to have it both ways? And that this ambiguity is constructed by the chief justice of the SJC?

[Art Leonard]

The point of this case is that the lesbian couple in question do NOT want to be married any more. R.I. is not being asked to extend legal recognition to their marriage, but rather to dissolve it. If R.I. does not want to recognize same-sex marriages, here is an opportunity for it to un-do one!

[Chairm]

Hang on, Professor.

The Rhode Island Supreme Court has just ruled that there was no ambiguity in the law. As far back as the 1960s and up to this date, the current divorce laws constantly referred to marriage as both-sexed. The marriage laws have done so much farther back than that.

This means that a mistake was made by the trial court in Massachusetts which guessed that the Rhode Island laws were ambiguous. Erring on the side of SSM was an error.

It points to mischief on the Massachusetts side of the border.

The source of that mischief? The Massachusetts SJC mistakenly added the perception of ambiguity. Not even the perception had existed before that.

It is unreasonable for the SJC to pose as if it had expected, even superficially, that each and every state in the union would react, instantly, to the very significant change in Massachusetts.

As the Rhode Island Supreme Court has re-affirmed, changes like this are for the legislative branch to enact, not for the judiciary to impose.

Perhaps that would surprise the judiciary in Massachusetts. However, the SJC's supremacy does not extend to the legislators outside of Massachusetts.

Those who rushed in from out of state did so mistakenly, if they expected that SSM would be treated as bon-a-fide marriage back home. They either did so for the symbolism or they did so out of speculation.

Back in Rhode Island they have not been treated as married. Not under Rhode Island law. Not under federal law. And they have not resided in Massachusetts. But even if they move there now, they were not married lawfully since there is, and was, no actual ambiguity in the Rhode Island law.

The only ambiguity, the perception of it, originated on the Massachusetts side of the border. The errors would not be corrected by making yet another error on the Rhode Island side of the border.

The lesbian couple were not married, even in Massachusetts, and that has been cleared up. Rhode Island's laws were not actually amibiguous in the first place. There was, and is, no marriage to dissolve.

[Art Leonard]

As far as Massachusetts law is concerned, there is a marriage. The Mass. and R.I. courts are using different tests, because the issue is construction of the Mass. 1913 statute, not the R.I. court's construction of its state marriage laws, in determining whether there is a valid marriage for purposes of Mass. law.

Indeed, the R.I. Supreme Court does not purport to decide whether there is a valid marriage for purposes of Mass. law. It is merely deciding, as a matter of construction of the R.I. family court statute, whether the 1961 legislature gave the family court jurisdiction to decide this case. And as the R.I. dissenters point out -- convincingly, in my view -- the family court's jurisdiction does not turn on the validity of the marriage as a matter of R.I. law, since other out-of-state marriages that would be considered void under R.I. law would still be within the jurisdiction of the family court to dissolve.

[Chairm]

Sure, the Mass 1913 statute explicitly depends on out-of-state law which, as established by the Rhode Island Supreme Court, is not, and was not, ambiguous. The Massachusetts judiciary botched this rather badly.

The dissenters on the Rhode Island Supereme Court complained of a legal limbo that does not exist in Rhode Island where there is no marriage to dissolve. The divorce question is made moot.

The lesbian couple crossed the border to do what they knew they could not do in their homestate. As nonresidents, from a state with unambiguous marriage laws, they did not enter into a valid marriage in Massachusetts, not even for the purposes of Massachusetts law.

But you dispute this conclusion.

SSM advocates describe the man-woman criterion a ban against SSM. If it is ban when written into the marriage law, then, why is it not a ban if the nonmarital one-sexed arrangement is not named explicitly in statute or state amendment or a court decision?

In Rhode Island, and elsewhere in the country, SSM was not, and is not, a type of marriage. It is perieved as a form of marriage only within Massachusetts and only for the purposes of Massachusetts law.

Please walk me through this:

1. The Rhode Island law was not ambiguous. SSM is not marriage on that side of the border. It is not even a voidable kind of marriage. It is nonmarriage, there. The lesbian couple knew that.

2. You say that nonresidents can SSM in Massachusetts if, in Massachusetts, the marriage is considered valid in Rhode Island. But that's not the case and wasn't the case, ever.

3. Given #1 and given #2, on what basis would you say there was a valid marriage performed in the example of the Rhode Island lesbian couple?

If you were to say that it is valid because the SJC thought there was ambiguity in Rhode Island, then, would you agree that the SJC introduced the perception of ambiguity on its own side of the border? In other words, its interpretation has proven to be flawed.

Also, don't SSM advocates want it both ways, as I asked earlier?

[Art Leonard]

You are twisting my comments around or not reading carefully.

The issue for the Massachusetts court was not whether RI's law was ambiguous. It was whether RI law specifically forbids recognition of same-sex marriages. Prior to last week's decision, there was no definite ruling in RI on that point, there is no anti-marriage constitutional amendment, there is no DOMA. Thus, the Massachusetts court concluded that the 1913 Mass law did not require clerks in Massachusetts to refuse to issue marriage licenses to same-sex couples from Rhode Island.

[chairm]

Professor, it is unfair to say that I've twisted of your words.

I have read your remarks with care. I have read the various court opinions with care. I've asked fair questions of you, in that context and arising from your original article above.

The SJC, as you just said, decided that recognition of SSM, as marriage, was not specifically forbidden in RI law.

Yet, when the SJC looked at Massachusett's own marriage statutes it acknowledged that the man-woman criterion of marriage did not include SSM, as marriage, specifically.

The RI court has just confirmed that was always the case. The RI lesbian couple did not need the RI court to point out the obvious for them. That's why they crossed the border. They attempted to evade the unambiguous, and yes specific, law in their homestate.

Yes, in the meantime, the SJC decided that there was ambiguity (or lack of specificity which amounts to the same thing) in the RI marriage law.

That decision was obviously mistaken both in terms of the same criteria that the SJC had used to assess the man-woman criterion in Massachusetts law and in terms of of the RI court's acknowledgement that for decades the man-woman criterion has, in effect, prohibited treating SSM as marriage in RI. There has been no change subsequent to the Goodridge opinion.

On the Massachusetts side of the border, the SJC chose to add ambiguity where none had existed. I don't think that can be dispsuted.

By doing so, the SJC rejected the reasonable approach by which SSM would be presumed "forbidden" except where expressly added to marriage recogniton, in amended statute.

Afterall, the SJC's Goodridge opinion, and its related advisory opinion, knowingly and expressly proposed a significant change to marriage recognition within Massachusets, provided specific reassurances regarding interstate conflict, and did so by speaking to the Massachusetts legislature.

In other words, the SJC pointed to the need for remedial legislation in its own state.

How could the SJC subsequently presume that, lacking remedial legislation, a neighboring state would instantly abolish the man-woman criterion and thus include what its own states laws had "forbidden" via the obvious man-woman criterion in marriage law?

Respectfully, that's the crux.

Now, in Massachusetts there has been no change to the marriage statutes. The man-woman criterion remains on the books.

Perhaps the SJC erred in its interstate decisions, especially regarding Rhode Island, because for some reason licenses for SSM have been issued without the legislature having abolished the man-woman criterion.

How did that come about? Did the Executive branch pass legislation on behalf of the Legislative Branch? Did the Judiciary legislate absent a change in positive law in Massachusetts?

I don't think that Romney has explained what happened but perhaps you would describe your understanding.

If we use the criteria of positive law in Massachusetts, where is that positive law?

The answer to these questions might shed light on the crux of the Rhode Island situation.

[Art Leonard]

The Mass SJC has not ruled on the R.I. question specifically. It said the 1913 statute was valid and remanded to the trial court for a determination whether the plaintiff couples from NY and RI were nonetheless able to marry in Mass., based on a tentative view that perhaps the laws of those states did not specifically forbid recognizing Mass. same-sex marriages as valid. By the time the trial court decided the case on remand, the NY Court of Appeals had ruled in Hernandez, thus making it clear that the NY couple could not marry in Mass. But there was not yet any appellate precedent in R.I. and, as in NY, there was not a clear prohibition in R.I. constitution or statutes, so the Mass. trial court decided that R.I. couples could marry in Mass., retroactively validating the marriage at issue in this new R.I. case. The state did not appeal this ruling, as a new administration had been elected that was predisposed to seek repeal of the 1913 law.

In any event - the issue before the R.I. Supreme Court in this case was one of jurisdiction, or at least that's how the majority treated the issue before them, and the question sharply split the court, which suggests to me that there is no clear answer to the question, reasonable judges can disagree, and I can disagree with the majority and side with the dissent, which argues that in adopting that jurisdictional language in 1961, the legislature intended to give the family court broad jurisdiction to decide divorce cases, and that the language used was not intended to confer a jurisdiction narrowed to dissolving only particular kinds of marriages. So long as the law of another state -- correctly or incorrectly -- regards a couple as married, the R.I. family court has jurisdiction, argues the dissent, to dissolve that marriage provided residency requirements are met, as they were in this case.

I see the majority's opinion as a way of forestalling for the future the ultimate question of same-sex marriage in Rhode Island. Perhaps that is prudent. After all, the question of who can marry is sorely vexed, and ideally should be decided through some democratic process that is consistent with constitutional guarantees of equal citizenship.

[Adam Bradley]

Have you noticed the next chapter in this case? This couple has now filed for divorce in the RI Superior Court, because the Supreme Court ruling only specified that the Family Court wasn't authorized to grant their divorce.
(http://www.projo.com/news/content/samesex_divorce_superior_12-14-07_QP88MC5_v16.262795b.html)

This seems doomed to failure, doesn't it? From what I understand, the law that was at the center of this case before specifies that only the Family Court can grant divorces.

[Art Leonard]

Based on reading the R.I. Supreme Court decision, that was my understanding. That the family court statute created that court and gave it sole jurisdiction over divorces.

But perhaps their argument is that the general trial court has residuary equitable powers that can be used to dissolve their relationship, since it is not being recognized as a marriage for purposes of construing the jurisdiction of the family court over divorces. Even if it is not a "marriage" within the meaning of R.I. law, it seems that it is regarded as a marriage for purposes of Mass. law, and thus it is a legal status of some sort that needs to be modified in order for the parties to continue their lives without the encumbrance of looming legal obligations. Or at least I imagine such an argument could be made.

[Chairm]

Professor, thanks for the reply (and for your previous replies) to my comments.

At the close of this comment, I'll ask two questions that no pro-SSM advocate has answered or even addressed, as far as I have seen. It would be appreciated if you'd take a crack at it.

* * *

No other state considers SSM to be a "particular kind of marriage", as you just put it. It is nonmarriage.

It ia not a subset of marriage to be validated or prohibited.

The RI Supreme Court determined that the Family Court has no jurisdiction in the "divorce" of an unmarried couple.

The SJC's "tentative view" has been answered. Rhode Island residents are not eligible to marry in Massachusetts and the lesbian couple are not married for the purposes of Massachusetts law.

As I said, the Suffolk County trial court erred albeit based on the error in guidance provided by the SJC.

The lesbian couple were not treated as married in their homestate, right?

They do not possess a "marital home" in Rhode Island, for example. There is no need to declare on alimony. Those are the two things they say they are concerned about.

Theirs is a nonmarital split.

* * *

It does appear to be mischief-making for the SJC to have created a "requirement" that other states name SSM as a form of marriage for the purpose of specifically prohibiting it, whether in statute or in constitutional amendment.

Why must other states be required to instantly react to the SJC's Goodridge opinion just to clarify the obvious -- that their residents might go to Massachusetts to do what is not permitted at home?

There was no such specific prohibition in Massachusetts, but the SJC decided, in its Goodridge opinion, that the man-woman criterion was indeed a statutory prohibition even if SSM was not named specifically.

This man-woman criterion also exists in the marriage statutes of Rhode Island and the rest of the country.

The SJC's "tentative view" added ambiguity where there was none. The SJC did have an eye on its neighbor, Rhode Island. Note that this decision split the SJC.

Yes, the Suffolk trial court's retroactive validation of a nonmarriage by nonresidents was pretty much done at the behest of the SJC's.

None of this ambiguity, or uncertainty, was created by Rhode Island statutory law. It was all fabricated, or imagined, from start to finish, on the Massachusetts side of the border.

Meanwhile, there has been no change to the marriage statutes in Massachusetts. Years after Goodridge, the man-woman criterion remains as positive law there.

1. What has changed, in positive law, in Massachusetts such that the SJC can find a requirement that other states respond, instantly, to its Goodridge opinion? How precisely has SSM become "a particular kind of marriage" in that state?

To reiterate: The Goodridge opinion and the now-expired court order pointed to the legislature in Massachusetts; just as the Rhode Island Supreme Court in this case has pointed to the legislature in Rhode Island.

In neither state has the legislature enacted the merger of SSM (everywhere in the country a form of nonmarriage) with marriage.

2. Did the SJC legislate the change in Massachusetts or did the Executive? Or was there some other legitimate mechanism of lawmaking used to accomplish it?

I think this goes to the supposed problem of the lesbian couple from Rhode Island. Where they married for the purposes of Massachusetts law, in fact?

[Art Leonard]

The Mass SJC has not required legislators or courts in other states to do anything. It has mandated that Massachusetts officials decide whether to issue marriage licenses to out of state couples by determining, based on their review of the constitution, statutes and judicial opinions of the other states, whether there is an affirmative showing that the other state would not recognize a same-sex marriage contracted in Massachusetts. Other states don't have to do anything in response to this unless they want to.

And, the RI Supreme Court's decision is much more limited in its precedential effect than you are describing it. The court majority stated that the only task before it was to determine whether the 1961 family court statute intended to give the family court jurisdiction to dissolve a same-sex marriage. The court decided that question should be answered from the perspective of a 1961 R.I. state legislator, and that based on dictionary definitions and common understandings of the term "marriage" in 1961, it was clear as a matter of legislative intent that the family court statute was intended only to authorize the family court to grant divorces to dissolve different sex unions, because those were the only kinds of marriages that 1961 state legislators had in mind.

The court said that it was not asked to address, and was not addressing in this case, the question whether same-sex couples living today in R.I. have a right to marry in R.I. Indeed, it was not even addressing the question whether R.I. would or would not recognize, in general, same-sex marriages performed in Massachusetts or anywhere else. It declined to rule on the issue of comity, on the possible application of DOMA, or on any state constitutional question. It said that the issue before it was entirely one of jurisdiction and interpretation of the family court statute.

The couple in question have reacted to the decision as follows - one of them has filed an action in the R.I. superior court seeking a dissolution of the marriage, arguing that the superior court can resort to its broad equitable powers to dissolve this relationship. I am doubtful about that, because I think it a fair reading of the family court statute that this court is given exclusive jurisdiction over divorce proceedings. Of course, now the couple will attempt to recharacterize their action as one for the dissolution of a legal relationship that is not necessarily a marriage in the eyes of R.I. law.

Why is this important to them? Because their lives are not isolated to R.I. Because like many R.I. residents, they frequently go to Massachusetts. And, according to a news story I've seen, there is also some real estate located in another state involved in this breakup. So it is important to them that to the extent their Mass. marriage has any legal effect, it be dissolved somehow so they can get on with their lives without the residual fear of a legal tie that might come back to haunt them or their heirs.

[Chairm]

The Mass. SJC did not require other states to do anything?

That is not quite right, Professor.

In effect, the SJC's criteria for deciding the inter-state question, for the purposes of Massachusetts law, comprised the following:

1. A presumption that the marriage statutes of another state did not prohibit treating SSM as marriage. This presumption could be affirmed or rebutted by certain actions.

2. Affirmed by a judicial opinion that discarded the man-woman criterion of marriage, like the Goodridge opinion.

3. Rebutted by a (recent) statutory provision that affirmed the man-woman criterion of marriage.

4. Rebutted by a state amendment that affirmed the man-woman criterion of marriage.

5. Rebutted by a judicial opinion that affirmed the man-woman criterion of marriage, like the opinions of every other state, since Goodridge, that addressed the question.

What the SJC excluded was the same criterion that it had used in its own Goodridge opinion: the existing man-woman criterion written in the marriage statutes of all states.

That criterion, according to Goodridge, was a prohibition on a kind of marriage. [See note below]

Look at the list. The presumption was wrongheaded unless the Mass SJC expected sister states to take action to rebut its Goodridge opinion, in some way.

It should have been presumed that other states retained the man-woman criterion unless there was a change either through a binding judicial opinion or through a statutory amendment of marriage law.

SSM has never been a kind of marriage, included or prohibited, in the marriage statutes around the country.

Thus, if a couple could not SSM in their homestate, then, they could not be lawfully married in Massachusetts, as per the 1913 statute.

Now, it took an action in Massachusetts to discard the man-woman criterion on the basis that it manifested a prohibition on what the SJC thought was a kind of marriage.

Question: What action was taken in Massachusetts, precisely, that made SSM a kind of marriage there?

Question: Or did this change come about due to inaction?

I'd appreciate a direct response to those two questions.

* * *

As for your recent comment about the RI Supreme Court's decision, it found that the common meaning of marriage in 1961 is retained today.

I doubt it could find that the statutory meaning in 1961 was a new thing and dated back only to 1961.

There has been no change in the man-woman criterion in Rhode Island's marriage statutes.

Inaction on that score is the reason that the RI couple went to Massachusetts to do what they could not do at home.

SSM is not recognized as a kind of marriage in Rhode Island, included or prohibited. It would take some action to change the status quo.

If you disagree, please elaborate.

* * *

As for the RI couple, they could return to Massachusetts and seek an annulment: a court declaration that no valid marriage existed.

[Op Ed]

Leonard: The Mass SJC has not required legislators or courts in other states to do anything.

Really? Not even to divorce same-sex couples that might ask them to? I thought you were arguing Rhode Island did have exactly that obligation in response to the Mass SJC.

Leonard: So it is important to them that to the extent their Mass. marriage has any legal effect, it be dissolved somehow

Since Massachusetts made the error in recognizing their marriage to begin with, the correct place to take this problem is back to Massachusetts for anullment. After all, Rhode Island isn't required to do anything by Massachusetts's ruling.