While the legislative process can be frustrating in the slowness of its forward momentum, RI has achieved legislatively what few other states have.
Adapted from an article written by Karen Loewy, Staff Attorney for GLAD (Gay Lesbian Advocates & Defenders) for the MERI blog.
Litigation is Complex
We share your frustration about the roadblocks to marriage equality in Rhode Island, and, having litigated the marriage cases in both Massachusetts and Connecticut, think it is eminently reasonable to want to look to the courts to protect the rights of same-sex couples seeking to marry. While the legal arguments are right, successful marriage litigation is incredibly complex, with legal, political, and educational factors needing to be aligned. When we look at how those factors play out here, we believe there is good reason for caution about seeking relief from the RI Supreme Court.
Court Rulings are Difficult to Overturn
Rushing into court and getting a bad result is not a zero-sum prospect. A loss in a marriage case can have ramifications not only for any future attempts to litigate this issue, but in other contexts as well. Once a court rules that marriage is not constitutionally required, you can’t just go back and ask them again. Courts are loathe to reverse themselves. It took the U.S. Supreme Court 17 years to overturn Bowers v. Hardwick in Lawrence v. Texas. Furthermore, a declaration that the state constitution doesn’t protect LGBT people from discrimination could affect the litigation of other issues, such as those affecting teachers, adoption, or custody. Our colleagues at the ACLU LGBT Rights Project have laid out some of these pitfalls in a really helpful way.
The Courts in RI Aren’t There Yet
To succeed in a marriage case, you have to present a question to the court that they’re ready to answer in the affirmative. In Rhode Island, one need look no further than the Chambers v. Ormiston divorce case for a reason why not to rush in with the hard constitutional question. They could have granted the divorce without wading into whether the marriage was recognized under RI law. They could have decided the matter on simple comity grounds. They didn’t. While the majority might not have been intending to reach an anti-gay result, it interpreted the statutes in a way that bars the door to the Family Court for gay couples, and has provided ammunition to those who would deny respect to married same-sex couples in other contexts. A marriage case needs to be seen as the next logical step in a court’s dealings with gay people and gay families. Such is not the case here.
There’s Another Way: Legislation
At this point in time, leadership is changing on the RI Supreme Court. Time will tell how that plays out. GLAD continues to advocate on behalf of LGBT people within the RI legal system. We are actively litigating a case trying to establish precedent under the anti-discrimination law. We are working to educate the bar and the judiciary about the lives of LGBT people and how discrimination hurts gay families. We are working to seek respect for already married couples within both the public and private sectors. There may come a time when litigation is exactly the right strategic choice for seeking marriage equality, but we believe that time has not yet come.
Slow & Steady
While the legislative process can be frustrating in the slowness of its forward momentum, Rhode Island has achieved legislatively what few other states have. Rhode Island repealed its sodomy law without judicial intervention. Rhode Island was among the earliest states to pass anti-discrimination protections based on sexual orientation and gender identity and expression. Rhode Island passed domestic partnership protections for state employees, including tax and pension protections. There is much work to be done, through legislative, electoral, public opinion, and grassroots efforts, which is why MERI needs all of our support.