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Marriage Equality: Judge Patricia Hurst puts the legislature between a rock and a hard place June 12, 2008

Posted by truthspew in Gay rights, marriage equality, politics.

I am thoroughly delighted. Superior Court Justice Patricia A. Hurst in her opinion (View The Opinion) on the divorce petition brought forth by Cassandra Ormiston and Margaret Chambers had some interesting viewpoints that are now part of the case law.

She denied the request since the law in the 60’s gave exclusive domain to the Family Courts when deciding matters of divorce. But she did go one further.

She explained that as Rhode Islanders both Ormiston and Chambers are being denied rights granted under our Constitution.

“The question yet to be asked is whether the Family Court Act, now having been interpreted by the Supreme Court [in the Chambers and Ormiston case] impermissibly deprives spouses in a same-sex marriage to equal protection of law on account of the coincidence in their gender,” Hurst said. “Assuming the legislature and the executive branch continue to ignore this problem, the question will be whether the Family Court Act is unconstitutional for the reason that it violates state constitutional principles of equal protection.”

I think she’s referring to Article 1, Section 5:

Section 5. Entitlement to remedies for injuries and wrongs — Right to justice. — Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one’s person, property, or character. Every person ought to obtain right and justice freely, and without purchase, completely and without denial; promptly and without delay; conformably to the laws.

But here’s the clutch part of all this. Hurst has essentially backed the legislature (Speaker Murphy and President (Soon to be indicted) Montalbano) and the executive (Governor Asshat Carcieri) into a corner. Because if Ormiston and Chambers challenge the Family Court laws under Article 1, Section 5, guess what will happen.

What will happen is that the Family Court goes away. More interestingly, I wonder what happens when there is no more court, how about all those collections of fees and child support, what happens to that? This would be a very, very BAD thing. I think Justice Hurst knew what she was doing when she made the remarks about the Constitutional challenge. Bravo!

So now the legislature HAS to act. Time to shit or get off the pot Speaker Murphy, President Montalbano and Governor Carcieri. This is a very elegant way of doing this and I tip my hat to Justice Hurst.

And Rep. Brien, stick your DOMA where the sun doesn’t shine.


1. Thomas P. Seymour - June 13, 2008

Her decision is regrettable, but understandable, given the fact that the courts in this state really don’t like to invalidate legislative enactments, even though the courts know that it is arbitrary and discriminatory. Judge Fortunato stuck out his neck a few times and was overruled.

As far as the R.I. Constitution is concerned, article 1, section 2 was amended in 1986 as “parallel, yet independent” of the federal Fourteenth Amendment. See TEACHERS’ UNION v. CITY COUNCIL, 888 A.2d at 956. In other words, the Equal Protection “guarantee” was clearly intended to provide GREATER protection against discrimination based on race, GENDER (as in this case, i.e., only “one man can marry one woman”) or handicap (people with disabilities).

Such was the case in the recent decision of the California Supreme Court. That court determined that their state constitution afforded greater rights than the federal constitution. The Court recognized that marriage is a FUNDAMENTAL constitutional right, regardless of the couples’ gender. See IN RE MARRIAGE CASES, ___ P.3d ____ (Cal. 5/15/2008).

Thanks for pointing out Article 1, Section 2. I also see how 1:5 applies too. The legislature and executive have now had their hand forced. It’ll be interesting to see how they react.

2. Thomas P. Seymour - June 13, 2008

Art. I, sec. 5 definitely applies also. That provision is actually contained in most state constitutions. It is actually based on the Magna Carta prohibiting the selling of justice by judges. The R.I. Supreme Court has previously held that this provision is “advisory” but not mandatory on the legislature. However, the Court has also struck down arbitrary or discriminatory enactments that denied persons of access to the courts under this section (i.e., barring a cause of action for an entire class of litigants). See KENNEDY v. CUMBERLAND ENG’G CO, 471 A.2d 195 (R.I. 1984). I really hope the Supreme Court knocks down the discriminatory (“one man, one woman”) statute on this basis, or under equal protection, or both.

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