The Constitutional Obligation to Adjudicate Petitions for Same-Sex Divorce and the Dissolution of Civil Unions and Analogous Same-Sex Relationships: Prolegomenon to a Brief

Abstract

Same-sex couples who entered into marriage, or marriage-like relationships in states that recognize such relationships, have been denied divorce or dissolution of those relationships by other states. These states refuse to recognize same-sex marriages, or their cognates, on constitutional or statutory grounds generally for want of jurisdiction. This Article argues that all such denials are unconstitutional. The argument is based on a doctrinal trifecta anchored by the law of three cases: Williams v. North Carolina, which deconstructed marriage; Boddie v. Connecticut, which swept away impediments to court access in family law matters, particularly divorce, where the state retains a monopoly on dissolution of a fundamental relationship; and Hughes v. Fetter, which required states to open their courts to narrowly similar juridical analogues from other states pursuant to the Full Faith and Credit Clause. Importantly, Justice Black identified “the national policy of the Full Faith and Credit Clause” in Hughes, a meta-policy that informs the Clause and controls its meaning and application beyond the micro-issues of enforcement, which restricts application of the Federal Defense of Marriage Act (“DOMA”) in these circumstances.

Keywords: same-sex marriage, Full Faith and Credit, Defense of Marriage Act, DOMA, family law, domestic relations, marriage, constitutional law, divorce, gay marriage

JEL Classification: K30, K39, K10