This memo was written by my cousin. He knows his way around the RI and U.S. Constitutions due to his fighting for his rights as an individual with certain disabilities. He sees parallels between his fight and the fight we’re going through right now in Rhode Island regarding marriage equality.
I think you all know my position on this issue already and I don’t have much else to say about this. But Tom definitely lays it out, in essence telling our legislators either they do something, or the courts will have to decide. I think his memo is going to shake things up in the Marriage Equality RI circles as they feel the RI Supreme Court is somewhat hostile to our cause and I understand that after the gay divorce debacle that the court dropped the ball on. But I think it comes down to wording it in such a way that the justices on the court cannot say no.
LEGISLATIVE MEMORANDUM SUPPORTING AMENDMENTS CREATING EQUAL MARRIAGE RIGHTS
In this memorandum of law, I shall briefly outline the legal reasons that this honorable General Assembly must pass the proposed legislation, bills S.2204 and H.7839, which will amend the current statutes to equalize the marriage rights of same-sex couples in Rhode Island (provided that both individuals are legally-competent, consenting adults and are not otherwise-prohibited because of bigamy or incest). R.I. General Laws, section 15-1-1 et seq. I also respectfully urge this Legislature to create such other remedies to enforce this provision (i.e., to prevent discrimination against lawfully-married, same-sex couples).
1. The current marriage statutes are facially arbitrary and invidiously discriminatory in their enforcement, and thereby violate the due-process and equal-protection provisions of the Rhode Island and United States Constitutions.
The Rhode Island marriage statutes discriminate based solely on the gender of one or both of the individuals, and on no other factor (emphasis added). These statutes recognize only marriages between one man and one woman, thereby depriving the
involved individuals and couples of their rights guaranteed by the Equal Protection
Clauses of the Constitution of the United States and of the Rhode Island Constitution.
U.S. Const., amend. XIV, sec. 1; R.I. Const., art. I, sec. 2 (1986).
The Fourteenth Amendment to the United States Constitution and Article 1, section
2 of the Rhode Island Constitution both clearly prohibit denials of substantive due-
process and equal-protection of the laws. Rhode Island’s equal-protection guarantee
(amended in 1986) is more specific, however, regarding the prohibition of gender-based
discrimination by the State. See Teachers’ Union, Local 958 v. Providence City Council,
888 A.2d 948 (R.I. 2005); Kleczek v. R.I. Interscholastic League, 612 A.2d 734 (R.I.
1992) and Jones v. State, 724 F.Supp. 25 (D.RI 1989). See also, Romer v. Evans, 517
U.S. 620 (1996) and Loving v. Virginia, 388 U.S. 1.
Moreover, the statutes are facially arbitrary as written and are enforced in an
invidious, discriminatory manner that is clearly repugnant to the substantive
due-process guarantees contained in both the federal and state constitutions. They
interfere with fundamental, constitutional and human rights of privacy, dignity and
freedom of association. See State v. Russell, 890 A.2d 453; Lawrence v.
Texas, 539 U.S. 558; Griswold v. Connecticut, 381 U.S. 379 and Meyer v. Nebraska, 262
In fact, the Rhode Island Supreme Court has long held that the right to marry (or to enter the marriage contract) is itself a fundamental right protected by the federal and state constitutions (emphasis added). See Riley v. Department of Environmental Management, 2006-175-Appeal (R.I. 2/14/2008)(citing In re Advisory Opinion to the House of Representatives, 85-H-7748, 519 A.2d 578 (R.I. 1987)(quoting Board of Regents v. Roth, 408 U.S. 562 (1972)).
2. The current statutes are inconsistent with the stated public-policy goals and
purposes of this General Assembly and previous court interpretations of the R.I.
Civil Rights Act of 1990.
The state and federal courts of Rhode Island have consistently construed the Rhode
Island Civil Rights Act of 1990 (“RICRA”), section 42-112-1 of R.I. General Laws, as a
broad, legislative grant of contractual rights for all persons within the State, regardless
of [inter alia] gender, and providing more expansive protection than the [then-existing]
federal civil-rights laws (emphasis added). See Ward v. City of Pawtucket Police
Department, 639 A.2d 1379 (R.I. 1994)(cited by Rathbun v. Autozone, 361 F.3d 62 (1st
Cir. 2004) and Wyss v. General Dynamics, 24 F.Supp.2d 202 (D.RI 1998).
In fact, our Supreme Court has held that the RICRA was enacted by this Legislature to override any statute inconsistent with its overall public-policy goal of eliminating all forms of discrimination (emphasis added). See Folan v. Department of Children, Youth and Families, 723 A.2d 287 (R.I. 1999).
3. If this honorable General Assembly refuses to act on this matter, the Rhode
Island Supreme Court may have no choice but to compel such action, as a matter of
Article 1, section 5 of the Rhode Island Constitution states that no class of
individuals can be completely denied a remedy for constitutional or legal injuries.
Kennedy v. Cumberland Engineering Co.,, 471 A.2d 195 (R.I. 1984). Our Supreme
Court would likely order this Legislature to fashion an appropriate remedy.
To summarize, this Legislature must be proactive in equalizing the marriage rights
and benefits for same-sex couples in Rhode Island.
Thomas P. Seymour
Copyright © 2008, Thomas P. Seymour. Interested persons or organizations may use the material contained in this memo, as long as they give me proper credit. The opinions contained herein are made by me as an individual citizen and disability-rights advocate. The author hereby states, under penalty of perjury, that he is not an attorney and therefore, nothing in this memo should even be remotely construed as his giving of legal advice or preparation of legal documents.