Can a couple obtain a divorce if, in the eyes of the state, they were never married?
That is the issue sent Wednesday to the Rhode Island Supreme Court, in the case of two Rhode Island women who traveled to Massachusetts to marry in May 2004 during a brief period when out-of-state, same-sex couples could wed there.
Shortly afterward, Massachusetts Gov. Mitt Romney invoked an obscure 1913 statute to prevent same-sex couples from other states from marrying in his state, the only one to permit such unions.
But the marriage of Margaret Chambers, now 70, and Cassandra Orniston, 59, broke up. Citing irreconcilable differences, the couple filed for divorce here in October. They have no children, and neither of them is contesting the breakup.
The legal issue is whether a same-sex couple can obtain a divorce in a state that is silent on same-sex marriages. On Wednesday, the chief judge of Rhode Island's Family Court chose not to rule on the issue, referring it instead to the Supreme Court.
"There's no indication that we can either hear same-sex marriages or same-sex divorces," Judge Jeremiah S. Jeremiah Jr. said Wednesday in a brief hearing.
Chambers did not attend the proceeding. Orniston said she was uncomfortable with the attention their separation has received.
"Divorce is hard enough without the added burden of being a test case," she said.
She added: "We have a right to fail like everybody else."
Although they had been together for 10 years, Orniston said the couple welcomed the opportunity to legitimize their relationship with marriage.
"Marriage does recognize the commitment two people want to make forever," she said. "No one anticipates that their marriage will fail."
In 2004, Massachusetts became the first, and thus far only, state to legalize same-sex marriage. Vermont and Connecticut offer civil unions, extending marriage-like rights to gays and lesbians.
More than 8,000 same-sex couples have married in Massachusetts. No records are kept on same-sex divorces, but attorneys who represent gay and lesbian couples say that at the least, dozens of same-sex marriages have been dissolved since they became legal. Some civil unions in Vermont also have been legally reversed.
But Rhode Island law makes no mention of same-sex unions. State Atty. Gen. Patrick C. Lynch has said the courts and Legislature must decide whether same-sex marriages will be recognized in Rhode Island.
Orniston's attorney, Nancy Palmisciano, said Wednesday that other than the fact that both parties are female, the case was "a very, very typical divorce in every respect. The issues are no weightier than in any other case."
She said that her client's marriage is no less valid than those of other clients who were married in Nevada, Florida, California or even other countries.
"They were heterosexuals, and there were never questions over whether they had a right to a divorce. What's the difference?" Palmisciano asked.
"We are not asking the state of Rhode Island to recognize same-sex marriage," Palmisciano said. "We are asking the state to recognize same-sex divorce. I'm not asking you to issue a marriage license here. We passed that when my client and her spouse received a valid license, according to the laws of the state of Massachusetts."
But Louis Pulner, Chambers' lawyer, worried that the couple's divorce might become invalid if the state Supreme Court ruled in the future that the Family Court did not have jurisdiction. Pulner filed the motion that Jeremiah accepted Wednesday, sending the case to the state's high court.
"While this is obviously a unique situation," Pulner said Wednesday in court, "nothing is as obvious as having some finality for my client, Ms. Chambers."
Michele Granda, a staff attorney in Boston with Gay and Lesbian Advocates and Defenders, said Wednesday that she could see no legal reason for Rhode Island to refuse the couple's petition for divorce.
"Married same-sex couples deserve the same rights and protections that married different-sex couples have, including the right to separate," Granda said. "Rhode Island has a long history of recognizing marriages that are entered outside of Rhode Island, and there is no reason to impose a gay exception."