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With two same-sex marriage cases before the U.S. Supreme Court and two competing bills that would legalize same-sex marriage now before the Rhode Island Senate Judiciary Committee, Roman Catholic Bishop Thomas Tobin issued a statement March 27 urging state legislators to delay any action.
Tobin, who leads the Diocese of Providence, has strongly opposed same-sex marriage.
"In light of the historic deliberations of the U.S. Supreme Court on same-sex marriage, it would be appropriate for the General Assembly of Rhode Island to defer any action on this critical issue for the time being," Tobin said. "Any legislative action that is taken now could very well be rendered completely null and void by the decision of the Supreme Court expected this June. It is likely that the Supreme Court will decide this matter for us, one way or another. Let's wait to see what the highest court of the land says about this issue which is so very important to many Rhode Islanders."
We were interested in Tobin’s assertion that any legislative action that is taken now by the General Assembly might become "completely null and void" after the Supreme Court's ruling on its two cases.
We asked Tobin’s office for an explanation. His spokesman said the bishop was out of town and unavailable.
So we started making inquiries.
The first Rhode Island proposal would, as a matter of law, replace the civil same-sex unions already legal in Rhode Island with same-sex marriage. That proposal has already passed the Rhode Island House.
The second, if approved by the General Assembly and signed by the governor, would call for a referendum on whether to enshrine same-sex marriage into the Rhode Island Constitution, a document that doesn't mention marriage at all.
Supporters of same-sex marriage oppose this bill, in part, because it includes protections for businesses that would refuse, on religious grounds, to provide goods and services for same-sex ceremonies.
We asked legal experts on both sides of the debate whether any action by the U.S. Supreme Court in the two cases it is considering could nullify action by the Rhode Island legislature. All said that passage of either Rhode Island bill would not be affected by a Supreme Court ruling.
That's because neither bill is proposing to make same-sex marriage illegal. The Supreme Court, in contrast, is weighing the constitutionality of bans on same-sex marriages, said Jesse Choper, professor of public law at the University of California Berkeley School of Law.
In the case heard March 26, the issue was whether a successful voter initiative passed in California, known as Proposition 8, can lawfully ban same-sex marriages in that state.
In the case heard the next day, the issue was whether the federal Defense of Marriage Act, commonly called DOMA, is discriminatory because, like the California law, it restricts the definition of marriage to a union between one man and one woman. DOMA denies federal benefits to same-sex couples.
"There is absolutely no chance that the Supreme Court will nullify a Rhode Island law adopting same-sex marriage, either by referendum or by action of the General Assembly," said Jared Goldstein, professor of law at Roger Williams University School of Law.
"The issue in the two cases before the Supreme Court this term is whether laws against same-sex marriage violate the Constitution's guarantee of equal protection, not whether laws allowing same-sex marriage violate the Constitution," he said in an e-mail.
David S. Cohen, a constitutional law and gender issues expert at Drexel University in Philadelphia, agreed: "Rhode Island still has every reason to go forward if they want marriage equality," he said.
If the Supreme Court were to broadly rule in the Proposition 8 case that it is unconstitutional to deny same-sex couples the right to marry -- a ruling most of our experts said seems unlikely given comments made by the justices during oral arguments -- that "would legalize same-sex marriage in every state across the country no matter what the state is currently doing," Cohen said. A ruling on DOMA would only apply to federal law.
Even if DOMA and the California proposition are upheld, "It doesn't preclude [Rhode Island] from recognizing same-sex marriage either way," said Emily Sack, also a professor at Roger Williams.
In theory, if the Supreme Court were to require every state to accept same-sex marriage, that would make the proposed referendum on the Rhode Island Constitution a meaningless ballot question.
"If the court rules that Prop 8 is invalid because same-sex couples have a constitutional right to marry in every state, the ruling would effectively block a state referendum on the subject because we don't put constitutional rights to a vote," said Goldstein. But "a decision granting same-sex marriage is under no threat of Supreme Court nullification, and the only realistic threat of nullification is if Rhode Island keeps the law as it is."
Bishop Thomas Tobin urged the General Assembly to delay consideration of any same-sex marriage legislation in Rhode Island because, "Any legislative action that is taken now could very well be rendered completely null and void by the decision of the Supreme Court expected this June."
But the question of whether to allow same-sex marriage -- the topic of the bills being considered by the state legislature -- is not what the U.S. Supreme Court is considering. The court is looking at the constitutionality of laws intent on blocking same-sex marriage.
That's a key difference.
As a result, except for an unexpected decision by the court to allow same-sex marriage nationwide, approval of either General Assembly bill is not going to be affected by what the justices decide in June.
We rule Tobin's statement False.
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ProvidenceJournal.com, "Bishop Tobin urges RI General Assembly to wait on Supreme Court before acting on same-sex marriage," March 27, 2013
RILIN.state.RI.US, "2013--S0038; An Act Relating to Domestic Relations -- Persons Eligible to Marry," "2013--S0708; Joint Resolution to Approve and Publish and Submit to the Electors a Proposition of Amendments to the Constitution of the State (Marriage)," "Constitution of the State of Rhode Island and Providence Plantations," all accessed March 29, 2013
PolitiFact.com, "As the Supreme Court takes up same-sex marriage cases, here's a primer," March 25, 2013
Interviews, Jesse H. Choper, Earl Warren professor of public law, University of California Berkeley School of Law; David S. Cohen, associate professor of law, Drexel University Earle Mack School of Law; and Emily J. Sack, distinguished research professor of law, Roger Williams University School of Law, all on March 29, 2013
E-mails, Jared A. Goldstein, professor of law, Roger Williams University School of Law, March 29, 2013
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