BY MATTHEW T. VALJI

On December 7, 2007, Cassandra Ormiston and Margaret Chambers, a lesbian couple from Rhode Island, had their dreams dashed by the state supreme court. They had hoped that the state would recognize their evolving relationship and that they could join millions of straight Americans each year in receiving a divorce. Unfortunately for them, the justices concluded that the Rhode Island family court, the standard arbiter for marriage-related issues, had no authority to grant the two women a divorce because the state did not recognize their marriage in the first place. In an ironic twist of fate and jurisprudence, because the laws of Rhode Island only refer to marriages between a man and a woman, two married women have no right to dissolve their marriage and are therefore forced to remain married and stuck in a legal limbo.

What makes matters worse is that they cannot simply return to Massachusetts, the state which granted them the marriage license in 2004, to get the divorce they both desperately want. Unlike quickie Las Vegas marriages (and annulments), which provide a cheap and easy ceremony for out-of-state tourists, Massachusetts only grants divorces to those who have established residency in the Commonwealth. To have their marriage dissolved in Massachusetts, currently the only state to grant both same-sex marriages and divorces, either Mrs. Ormiston or Mrs. Chambers would have to pack up and move to Massachusetts and remain there for at least twelve months before filing for divorce. In an interview with the Associated Press, Mrs. Ormiston maintained that the 3-2 decision violated, “My civil rights, my human rights have been denied.”

To me, this story sounds more like a fictitious article from The Onion or The Daily Show than a real sequence of events. Nevertheless, I believe that both its irony and its injustice serve as a powerful critique of the way America addresses civil rights for the gay community. At least as long as the institution of marriage is inseparable from the multitude of civil benefits it bestows, denying a couple access to these benefits, which range from financial to custodial, is unjust. However, until the United States Supreme Court decides otherwise, states have the right to grant marriages licenses as they see fit. While I am mindful of the states-rights arguments against forcing each and every state to grant marriage licenses to homosexual couples, it seems rather ridiculous and that a couple can be considered married in one state and the act of driving across a state border somehow nullifies this contract.

In addition to offending my personal sensibilities and sense of justice, this practice seems to patently violate both the spirit and the letter of the Full Faith and Credit clause of the US Constitution which stipulates that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” In an attempt to wrangle out of this constitutional obligation, the US Congress passed the Defense of Marriage Act in 1996, which explicitly states that a marriage granted by an individual state need not be recognized by either the federal government or other states governments. While the Full Faith and Credit clause gives Congress the power to prescribe “the Manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof,” it clearly does not give the legislative branch the power (without a constitutional amendment) to directly overrule or subvert the constitution itself.

Exceptions to Full Faith and Credit are made for some state acts and licenses such as those regarding firearms, but it hardly seems just to allow the fundamental building-block of our society, the family, to be tampered with when traveling between states. Not to wax polemic, but prohibiting a married or ( even “unioned”) person from visiting their dying spouse in a hospital, just because the state where the hospital was erected does recognize that they are family, seems cruel and frankly, un-American.

While the struggle for the right to divorce may seem less hefty or less significant than other battles for gay rights, it is on the front line in the struggle for the “normalization” of the gay community. Until 2003, state statues prohibiting homosexual sodomy restricted the movement and activity of gay people in this country. Five years later, the complex array of state-granted domestic partnerships, civil unions, and full-blown marriages (most of which are not recognized by the majority of other states), presents a daunting challenge for those homosexual couples who wish to accrue and retain the civil rights associated with marriage or partnership in the long-term. ]]>