By Lisa Keen
Rhode Island took a step last week toward becoming the first state to recognize same-sex marriages legalized in neighboring Massachusetts.
The Rhode Island Attorney General advised a state agency to "accord marital status" to its state employees who have obtained marriage licenses in Massachusetts with same-sex partners. He further stated that, unless the state adopts a strong public policy against same-sex marriage, state officials should give legal recognition to marriage licenses obtained by same-sex couples in Massachusetts.
While the memorandum is non-binding, says Karen Loewy, an attorney for Gay & Lesbian Advocates & Defenders, state officials tend to follow such advisories from the state's top legal counsel.
Loewy said Attorney General Patrick Lynch issued the Feb. 20 memorandum in response to an inquiry from the state Board of Governors for Higher Education. GLAD had been in conversations with both Lynch and the Board regarding recognition for benefits for a lesbian state employee's spouse, after the couple obtained a marriage license in Massachusetts.
The advisory came just one week after the New Jersey Attorney General said the Garden State would treat marriage licenses obtained by same-sex couples as civil unions. New Jersey's new civil union law went into effect in February. And, according to the Associated Press, it came a week after Attorney General Lynch attended the wedding of his sister to a woman. Lynch told AP that his sister's Feb. 15 marriage had "zero impact" on the Feb. 20 memorandum. In fact, Lynch's office had issued a similar memorandum in October 2004.
"Rhode Island has not enacted any legislation prohibiting same-sex marriages or stating a public policy against same-sex marriages even though they have been validly performed in neighboring Massachusetts for approximately three years," wrote Lynch in his letter. He noted that, in the previously unpublicized memorandum of October 2004, his office had offered the same assessment. In that case, he said a same-sex spouse of a state employee who was married in Massachusetts was entitled to "spouse's benefits."
In another little publicized development, a state university in Vermont has agreed to recognize an employee's same-sex marriage in Canada.
Meanwhile, the Rhode Island Supreme Court has also been asked to issue an advisory opinion in the area of same-sex marriages. In that case, a Rhode Island lesbian couple who obtained a marriage license in Massachusetts is now seeking a divorce in the state's family court system. The family court asked the state supreme court to advise it as to whether the court should exercise jurisdiction in the matter; the supreme court sent the case back to family court and directed it to provide more information, and last week, the lower court did so.
Lynch noted that Rhode Island does have a strong public policy against discrimination based on sexual orientation. The state has also provided insurance coverage to the same-sex domestic partners of state employees and recognized the parental status of the same-sex partners of women who have given birth to children. The Rhode Island Judiciary allows employees to take bereavement leave for the death of a spouse or domestic partner. These things, he said, support "a conclusion that same-sex marriages are not contrary to Rhode Island public policy."
Rhode Island has no civil union law, no domestic partnership law, and no other official public policy regarding legal rights of same-sex couples. While the federal statute known as the "Defense of Marriage Act" (DOMA) gives a state the right to reject recognition of another state's marriage, he said, it does not express Rhode Island's policy on the issue and the state has not formed such a policy.
Lynch addressed this point as a key factor in coming to his conclusion that state officials should recognize same-sex marriage licenses from other states.
"Under both principles of comity and full faith and credit," wrote Lynch, "Rhode Island will recognize any validly performed in another state unless it would be against the strong public policy of this state to do so."
Comity is a matter of courtesy among courts, to give appropriate respect to one another's rulings. Full faith and credit is a clause in the U.S. Constitution requiring states to give recognition to the laws of other states, assuming those laws do not violate a strong public policy of its own.
Rhode Island, said Lynch, does not have a strong public policy statement regarding same-sex marriage licensing.
Such policy, he said, would have to come in the form of a law. If a state court agrees that the state has no public policy against same-sex marriage licensing, he said, courts would presumably find such marriage licenses to be valid in Rhode Island.
