Fear and Loathing in Massachusetts: Same-Sex Marriage and Some Lessons From the History of Marriage and Divorce

Abstract:     
When Massachusetts became the first and only state in the union to issue legal marriage licenses to same-sex couples last May, the state's Governor, Mitt Romney, warned that "Massachusetts should not become the Las Vegas of same-sex marriage." Romney's warning makes sense only as a reference to Las Vegas' reputation for the "quickie" divorce - a heavily disparaged historical practice in which residents of other states would seek a divorce in Nevada because their home states would not grant them one, at least not on the terms or at the pace they desired. This essay retraces the history of divorce in the United States, with a particular focus on the persistent non-uniformity of divorce laws and the resulting concerns about migratory divorce. It then considers the parallel but understudied counterpart in the marriage context - the evasive marriage. The essay draws on these parallel histories of migratory divorce and evasive marriage to reconsider the contemporary battle over same-sex marriage, which reinvokes historical tensions between the desire for uniformity of state laws and the right of states to regulate domestic relations at the local level. It concludes with a different cautionary tale than the governor's: states can peaceably co-exist with non-uniform marriage laws, and historical attempts to coerce or demand uniformity of state laws on marriage and divorce have been unsuccessful.

Keywords: marriage, divorce, same-sex marriage

Accepted Paper Series