In Rhode Island, One-Sided Arguments Blindside Marriage Question

Posted: Oct 15, 2007 12:00 AM

As I walked through the streets of downtown Providence and then entered the Rhode Island Supreme Court chamber, I’ll admit that I was a bit nostalgic. After all, Providence was founded long ago (around 1636), and it is one of our country’s original 13 colonies. Rhode Island is one of the six states that comprise “New England,” and the historic Plymouth Rock is only a stone’s throw away. Providence was even named for “God’s merciful providence” with its history steeped in religious symbolism. At first, my Rhode Island experience was truly unique. Then I reminded myself why I was there—to hear a case that would determine whether the Rhode Island Supreme Court would choose to redefine marriage like its neighbor, Massachusetts. The wind quickly left my sails.

Adding to my pains was the fact that I would not be participating in the hearing. Like most appellate advocates, I live for oral argument, but I would not be arguing in this case. The Rhode Island Supreme Court expressly denied that opportunity to ADF and others. What hurt so much was not necessarily that I would be sitting on the sidelines, but that the argument to be presented to the court would be one-sided. Yes, there would be only one side arguing the case, and only one viewpoint shared with the court. The same-sex couple, who both want same-sex “divorce” rights in Rhode Island, would be the only ones entitled to share their perspective with the court. Though they were technically on opposite sides, their briefs did not conflict and were virtual mirror images. Nobody disputed that their legal perspective was identical, but the Rhode Island Supreme Court chose to indulge itself in that legal fiction.

I was still in disbelief as I entered the court. How can they do this? I just couldn’t wrap my head around the fact that one of our nation’s high courts was actually going to hold a public proceeding, where a legal debate and argument was to take place, but where only one side would be allowed to participate. After all, it’s not as if the court didn’t have a choice. Two of the nine groups who filed “friend of the court” briefs (called “amicus” briefs) opposing the same-sex couple also filed motions for permission to participate in oral argument and present the voice of reasoned opposition. Yet, the court declined these offers, choosing to hold a one-sided battle. Though frustrated, I still wasn’t sure what I would see, and part of me still held out hope that an advocate would magically appear at the last instant to save the day. Perhaps the court might even change its mind during the argument and ask, “Is anyone from the Alliance Defense Fund here to provide a different perspective?” Of course, hope is always a dangerous thing. Unreasonable expectations and false hope oftentimes lead to disappointment. Today was no exception.

As the justices appeared from behind the curtains, they each carried large files filled with the various briefs and writings submitted on the case. This was a mildly encouraging sight. Then, the chief justice welcomed everyone, including those of us who filed amicus briefs! He held up the stack of briefs filed in the case and specifically thanked all who had filed the briefs, stating that they were “very helpful.” Okay, then. Things were temporarily looking up a bit. In that there were only five amicus briefs filed in support of the requested same-sex “divorce,” and nine amicus briefs filed in opposition, the sheer numbers seemed to indicate that this was a positive sign. Unfortunately, that was as good as it would get.

Each side (fictitious as that may be) had 30 minutes to present their arguments, plus 10 minutes for “rebuttal.” (In this instance, the “rebuttal” would more appropriately be entitled the extra opportunity to say whatever you wanted, since your “opponent” wasn’t really an opponent.) Thus, 70 minutes was set aside for the arguments. Yet, each side ran out of something to say in only 15 minutes. After about five minutes of “rebuttal” argument, the whole thing was over in about 35 minutes. I’ll say it again—the arguments on whether same-sex “marriage” should be the law in Rhode Island were completed in only 35 minutes. I sat astounded.

How could the fate of same-sex “marriage” in Rhode Island be completed in only 35 minutes? Did nobody really care? Was there nothing to debate or discuss? Moreover, not only were there virtually no questions forthcoming from the bench, the most important question was never asked or posed—what is marriage? No justice ever asked if marriage was one man and one woman, or if it meant whatever Massachusetts claims it to mean. When one of the parties’ attorneys dared to argue that the question before the court involved the constitutional rights of her client, no justice asked where in the Rhode Island Constitution existed a right to same-sex “marriage” (since the word “marriage” is not even in the Rhode Island Constitution). When the parties’ attorneys argued that the doctrine of comity (that is, respecting the court decisions and laws of another state) mandated their clients’ same-sex “marriage,” no justice asked about the clear public policy exception to that doctrine in Rhode Island. No justice expressed concern about instituting same-sex “marriage” as public policy in Rhode Island, and no justice once posed a question that remotely reflected any of the arguments raised by the nine amicus participants opposing same-sex “marriage” in Rhode Island. In this courtroom, on this day, the concept of opposition was non-existent. The parties’ attorneys said whatever they wanted to say...and got away with it.

When the Rhode Island Supreme Court chose to deny the amicus participants the opportunity to participate in oral argument, and hold a one-sided debate, I held out hope that the arguments of reason would be represented by the court (or at least a single justice). After all, in a public arena, with the media, politicians, and all other interested persons present, the debate over so important a topic is supposed to be fair and two-sided, right? Unfortunately, the voices of truth and reason were sitting in the audience wearing judicially-imposed muzzles. The spectacle of a fair-minded public debate was merely an illusion held out to fulfill the expectations of those who expect courage and intellectual discipline from a state’s high court.

Though you can never know how exactly a court will rule from observing its oral argument, this is regrettably one on which I will not be holding my breath. However, if the chief justice was telling the truth (and I’m sure that he was), the arguments of reason were read and understood. Perhaps the arguments of reason were so clear that questioning was not necessary. I pray that the Rhode Island Supreme Court will understand the ramifications of granting a “divorce” to the same-sex couple and will keep marriage what it has always been in Rhode Island since 1636—one man and one woman.