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By Eric Tucker
Associated Press Writer / December 7, 2007

PROVIDENCE, R.I.—A lesbian couple who married in Massachusetts cannot get divorced in their home state of Rhode Island, the state's highest court ruled Friday in a setback to gay rights advocates who sought greater recognition for same-sex relationships.
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The Rhode Island Supreme Court, in a 3-2 decision, said the family court lacks the authority to grant a divorce because state lawmakers have not defined marriage as anything other than between a man and a woman.

"The role of the judicial branch is not to make policy, but simply to determine the legislative intent as expressed in the statutes enacted by the General Assembly," the court wrote in the state's first case dealing with same-sex divorce.

Cassandra Ormiston and Margaret Chambers wed in Massachusetts in 2004 after that state became the first to legalize same-sex marriages. The couple filed for divorce last year in Rhode Island, where they both live, citing irreconcilable differences.

"My civil rights, my human rights have been denied," Ormiston said in a telephone interview. "It's no small matter."

Though the women could divorce in Massachusetts if one moved there for a year, Ormiston said that was an unfair burden and something she would not do. She said she was "embarrassed" for the court.

"I see this as a matter of justice not denied -- but rather justice delayed," she said. "This is an issue that will in time be resolved correctly. Today's not that day, but this issue will not go away."

Nancy Palmisciano, Ormiston's lawyer, said couples married in other states and other countries are routinely granted divorces in Rhode Island, and that the same freedom should apply in this case.

"I'm disappointed for anyone who's involved in one of these marriages who's a resident of the state of Rhode Island," she said. "I think these people are being confined to a legal limbo."

Louis Pulner, a lawyer for Chambers, said he was surprised by the decision.

"I feel that it's unfortunate that two people who are legally married cannot get closure here in the state of Rhode Island," Pulner said.

Palmisciano and Pulner had argued that the court should consider only whether Rhode Island could recognize a valid marriage from another state, and stressed that the court's decision would have no bearing on whether same-sex couples could wed in Rhode Island.

Massachusetts, the only state where gay marriage is legal, restricts the unions to residents of states where the marriage would be recognized, and a Massachusetts judge decided last year that Rhode Island is one of those states.

No law specifically bans same-sex marriages in Rhode Island, but the state has taken no action to recognize them.

The justices said Rhode Island laws contain numerous references to marriage as between a woman and a man. The court also said the General Assembly did not have gay marriage in mind when it created Rhode Island's family court, which handles divorces, in 1961.

The couple's divorce petition drew a broad range of supporters, including Attorney General Patrick Lynch, who earlier this year released a nonbinding advisory opinion saying Rhode Island should recognize same-sex marriages performed in Massachusetts.

In earlier court filings, Gov. Don Carcieri, an opponent of same-sex marriage, had also argued in favor of granting the divorce. He said under Rhode Island law, the family court didn't have to address whether the marriage was valid at all, avoiding a larger debate about same-sex unions.

But he hailed Friday's court decision, saying in a written statement that, "It has always been clear to me that Rhode Island law was designed to permit marriage -- and therefore divorce -- only between a man and a woman."

Karen Loewy, a staff attorney for Gay and Lesbian Advocates and Defenders, said she viewed the court's decision as a narrow ruling, but feared that same-sex marriage opponents would use it to argue against broader legal recognition for same-sex couples in Rhode Island.

"You're essentially asking these women to move to access justice" Loewy said. "The door of the courthouse has been barred for them."

Jenn Steinfeld, director of Marriage Equality Rhode Island, said she felt "incredibly upset" but would continue to push the General Assembly to legalize same-sex marriages.

But opponents of same-sex marriage praised Rhode Island's top court for rejecting even a limited recognition of same-sex marriage.

"The meaning of marriage in Rhode Island is the union of a man and a woman," said Monte Stewart, president of the Utah-based Marriage Law Foundation, which filed a brief in the case. "You have to have a marriage before you can have a divorce."