The facts for this comment, but not the legal conclusions, come from an article in the Boston Globe website, on 8 December, 2007. The Supreme Court of Rhode Island and the legislature of that state had previously defined marriage as between “a man and a woman.” Two lesbians from Rhode Island challenged that definition by seeking a divorce in that state.

The lesbians had gone to Massachusetts to get “married,” right after that state became the first in the nation to legalize “same sex marriage.” After the couple returned to Massachusetts, the relationship fell on hard times, and they sought a divorce.

The Rhode Island Supreme Court ruled (as the Supreme Judicial Court of Massachusetts should have ruled in its case) that the state law on marriage was written by the legislature, and that changes in that law must be made by the legislature. The idea that legislatures are there to write laws, and judges are there to enforce those laws, is not a new one. It was part of the design of American government from the beginning. But only a bare majority of one judge, 3-2, accepted that idea in Rhode Island. In Massachusetts, that idea could not muster a majority. It lost 4-3, despite the fact that judges should not rewrite the laws is an explicit provision in the Massachusetts Constitution.

The Rhode Island court could not have been clearer in its ruling. It wrote, “The role of the judicial branch is not to make policy, but simply to determine the legislative intent.” The ACLU vigorously supported the contrary idea, that courts should rewrite the law whenever they choose, in both Massachusetts and Rhode Island.

The option remained open that the couple could go back to Massachusetts where they were “married” in the first place, and get divorced there. One of the couple, interviewed on the phone after the decision, said, “I simply will not support my own discrimination.” She did not explain why it was discriminatory to expect her to drive to Massachusetts a second time.

This case may not be over, even though the Supreme Court of Rhode Island has spoken on a point of Rhode Island law. It is possible that the Respondents will ask the US Supreme Court to take the case, claiming that R.I, has violated the Full Faith and Credit Clause of the US Constitution. If the US Supreme Court takes that case, then the problem created by four judges in Massachusetts will in fact become national.

There may be other test cases in other jurisdictions on the same issue, since “married” homosexuals from Massachusetts have sought the benefits of marital law in several ways, in several states.

Source for original story on the Net: