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Sun Nov 11, 2012, 07:16 AM

No marriage equality in NM or RI. What gives?

My best understanding (without digging too much into each state's statutes) is that at least two states, New Mexico and Rhode Island, do not have any laws expressly prohibiting marriages between people of the same sex. And yet neither of these states allows same-sex couples to marry.

In New Mexico in 2004, this was tested by a county clerk who started issuing marriage licenses to same-sex couples. She was promptly shut down by the attorney general and a local judge, but no one appears able to point to a law that justifies their actions. In Rhode Island, they seem to have decided that marriages between same-sex couples contracted elsewhere would be recognized, but again, no law specifically bars these marriages from being contracted within Rhode Island's borders.

My source is this Wikipedia article. This article lists the statutes and/or constitutional provisions addressing marriage in each state, but New Mexico and Rhode Island are conspicuously bare. The corresponding Wikipedia articles for each state confirm this. (I know Wikipedia itself isn't a reliable source, but I've deemed this particular info to be accurate.)

In my mind, if the law doesn't prohibit something, then that something is implicitly allowed. New Mexico and Rhode Island don't allow same-sex couples to marry, but for no legalistic reason I can discern. This completely baffles me. Can anyone explain this?

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Arrow 6 replies Author Time Post
Reply No marriage equality in NM or RI. What gives? (Original post)
Athelwulf Nov 2012 OP
Marrah_G Nov 2012 #1
Old Union Guy Nov 2012 #2
Marrah_G Nov 2012 #3
Buzz505 Nov 2012 #4
Athelwulf Nov 2012 #5
Glaug-Eldare Nov 2012 #6

Response to Athelwulf (Original post)

Sun Nov 11, 2012, 08:43 AM

1. RI I would put the blame squarely on the influence of the Catholic Church

It's a very Catholic state, extremely small and alot of Catholic immigrants who come from places the church still has a much stronger emotional hold over.

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Response to Marrah_G (Reply #1)

Sun Nov 11, 2012, 11:29 AM

2. Not having marriage equality is not a monopoly of the Roman Catholic Church. n/t

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Response to Old Union Guy (Reply #2)

Sun Nov 11, 2012, 01:58 PM

3. No but the Catholic church is a monopoly in RI

In my opinion, that has alot to do with it.

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Response to Athelwulf (Original post)

Sun Nov 11, 2012, 02:58 PM

4. We were married in 2004

along with 68 couples. I see no reason why people can not get married since our marriage is legal, some couples have gone through divorce proceedings. We have a tea bag gov. that is an idiot.

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Response to Buzz505 (Reply #4)

Mon Nov 12, 2012, 01:35 AM

5. Maybe it needs to be tested again?

The Mexican state of Quintana Roo successfully attained marriage equality on the grounds that state law didn't explicitly ban it. Maybe that principle would translate well into US law.

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Response to Athelwulf (Original post)

Mon Nov 12, 2012, 02:37 AM

6. They're probably illegal as a matter of case or common law.

Regardless of the absence of a specific statute, state law is often guided by judicial precedent, common law, and AG guidance. A similar situation is self-defense law in Maryland -- there is no statutory basis for making a self-defense claim, but they are valid, as state courts have decided that they are an element of the common law. Most likely, NM and RI marriage policies have not been challenged, or have been held by courts to apply only to hetero couples.

Justia is awesome for looking up these things when Wikipedia won't do.

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