by Eric Marion

February 23, 2009

The State Legislature will be presented with several bills this week for consideration in the Senate Judiciary Committee. One set of bills will address the divorce issue first raised in an embarrassing opinion rendered by the Rhode Island Supreme Court in the Chambers v. Ormiston decision. The second set would seek to limit or expand marriage rights to same-sex couples.

First on the divorce issue.

I have practiced law in many courts in Massachusetts and Rhode Island. I have argued before many judges and tribunals in both states. The comparison between the Massachusetts and Rhode Island Judiciary is striking.

Massachusetts boasts the western hemisphere’s oldest continuing Court of Law. The decisions rendered by Massachusetts courts, whether at the state or federal level, are widely considered to be the nation’s most articulate, well-researched, and respected decisions. Massachusetts decisions are frequently referenced by Courts in the European Union and the US Supreme Court. When I argue before a Court, things don’t always go my way. I respect, however, the rule of law and the need establish sound legal principles at every juncture in the decision-making process. I have seldom been disappointed by Massachusetts judges on points of law, although certain judges do have demonstrated biases for or against certain classes of clients.

Which brings me to Rhode Island. As an attorney, I find Rhode Island Courts to be sometimes ineffective and on occasion even an embarrassment to the nation’s judiciary. Case in point: the Rhode Island Supreme Court reached its conclusions in the Chambers v. Ormiston decision (referenced above) based on its interpretation of verbage gleaned from a 1962 dictionary. The twisted path of legal reasoning used by the Rhode Island Supreme Court in the Chambers decision is indicative of the Court’s refusal (or inability) to grapple with complex legal issues. Carl Bogus succinctly discussed the diminished respect for Rhode Island’s Supreme Court in his ground-breaking tome “Culture of Quiessence”, a book which openly criticized Rhode Island’s secretive and unaccountable judiciary. Great reading, I highly recommend it.

We can do little to increase respect for the state’s judicial branch. Until lawyers and judges are held professionally accountable by the people of Rhode Island, the state’s court system will continue functioning as a pale version of the courts in neighboring states. We certainly can't depend on the courts in Rhode Island to secure our basic rights as GLBT individuals. The court has spoken: you're on your own, don't bother the men (and women) in black with your petty gripes about "liberty" and "justice".

Now on to what we can do as members of the GLBT community: marriage or civil unions?

I admit that marriage and only marriage will guarantee portable rights to same-sex couples. Civil unions do not carry cross-jurisdictional recognition which would guarantee equality in states that don’t acknowledge same-sex relationships.

However, 'coulda shoulda woulda' has never been a valid reason to “hold off” for an eventual payoff. Gay and lesbian couples are being harmed today by Rhode Island law. Partners are unable to retrieve their deceased love one’s body. Lesbian mothers have to jump through legal hoops to obtain equivalency in parenting rights. Gay and lesbian couples have to spend exhorbitant sums on lawyers and accountants to obtain favorable financial treatment from public and private entities. And this harm continues and will continue for several years as marriage equality is argued between camps in the class of the political elite.

It is believed that even with the sitting governor, Rhode Island could achieve civil unions in the current legislative session. I have polled key legislators, and spoken with supporters of the Republican political establishment. My take is that even the most rabid homophobes would prefer a civil union compromise to redefining “marriage”. When speaking with a number of legislators last year during the election season, the common theme was “I have no problem with civil unions, but same-sex marriage I can’t support.” This theme carries over into our own community: I spoke with a dear friend at Mirabar who is in a committed relationship. “I can’t wait for marriage, I need the benefits of civil unions TODAY” he stated. From my conversations, this position appears to be shared by all but the most hardened (or some would say, the most radical) activists.

We can hope for and fight for same-sex marriage. But what about today, tomorrow, and next year? It is wrong and immoral to sacrifice humanity for idealism. The constant philosophical debate of ‘people vs. ideas’ carries through in every microcosm of the human experience, and is particularly apparent on issues of great import such as same-sex marriage. Human beings have fought, killed, and tortured each other in the name of ‘idealism’ since the beginning. Idealism is an uncaring archetype which perverts human compassion into zeal which is then wielded on innocents as a weapon of subjugation. Choosing ‘the idea’ over realism and practical consequences emanating from ‘the idea’ is wrong-headed. Social justice derives from and is advanced by the pleas of the masses, not by adherence to the dictates and dogma of philosophy.

For these reasons, Divine Providence is publicly calling on MERI and the ACLU to reconsider their wrong-headed singular commitment to nothing less than same-sex marriage. We’ll get there, that’s no question. But from what I have seen, the political will to achieve marriage equality is neither present in the legislature nor the GLBT community. We should rethink our strategies and focus on obtaining civil union legislation with the current legislature.

Let’s care for our own now, and worry about tomorrow when (and if) tomorrow comes.