(Providence, Rhode Island) A lesbian married in Massachusetts and seeking a divorce in her home state of Rhode Island has lost another court battle, this time in Superior Court.

Because Rhode Island has no specific law banning same-sex marriage gay and lesbian couples can go to Massachusetts to marry.

But those marriages are not recognized in Rhode Island.

In 2006 Chambers filed for divorce in Family Court in Providence, citing “irreconcilable differences”. 

Because of the lack of specific legislation on same-sex marriage Chief Family Court Judge Jeremiah S. Jeremiah Jr. asked the Rhode Island Supreme Court to determine if he has the authority to hear the case.

Last December in a split decision the high court ruled that laws governing Family Court do not include same-sex couples. (story)

Chambers then took the case to Superior Court.

On Wednesday Superior Court Judge Patricia A. Hurst dismissed the case saying only Family Court can hear cases involving divorce, and said that because of the Supreme Court ruling on same-sex divorce in Family court there was no point in taking the issue back to the justices.

“If same-sex marriage was not on the legislature’s mind in 1961 when it passed the Family Court Act, then same-sex marriage certainly wasn’t on its mind when the Superior Court was established over half a century earlier in 1905,” Hurst said in her written ruling.

But at the same time she suggested the high court left open the argument whether excluding same-sex couples from Family Court could be unconstitutional.

“The question yet to be asked is whether the Family Court Act, now having been interpreted by the Supreme Court, impermissibly deprives spouses in a same-sex marriage to equal protection of law on account of the coincidence in their gender,” Hurst’s ruling noted.

“Assuming the legislature and the executive branch continue to ignore this problem, the question will be whether the Family Court Act is unconstitutional for the reason that it violates state constitutional principles of equal protection.”

Chambers’ attorney has not said if he will take that argument back to the state Supreme Court.