42 Pages Posted: 14 Sep 2011 Last revised: 29 Oct 2012
Date Written: September 13, 2011
Divorces are granted every day in every state. In the vast majority of cases, there is no question that the court can and should grant the divorce. But in a growing sub-set of divorce cases - those involving same-sex couples - courts are refusing to consider the request for a divorce on the merits. Six states and the District of Columbia currently permit same-sex couples to marry, yet thirty-eight states have either adopted constitutional amendments or enacted statutes that prevent their courts from recognizing those same-sex marriages validly entered into within another jurisdiction. But what happens when a same-sex couple, legally married in one jurisdiction, seeks to dissolve their marriage in a state that prohibits recognizing their same-sex union? Most courts have thus far refused to grant a divorce to same-sex couples on the ground that the court lacks subject-matter jurisdiction to hear the matter. Yet the state where the couple was married also lacks jurisdiction because the couple is not domiciled there. This Article argues that denying any individual the ability to divorce is improper. Civilized societies ought to permit divorce for a variety of reasons, and providing access to a forum to adjudicate genuine disputes, including requests to divorce, avoids the potential of violating the Fourteenth Amendment’s Due Process Clause. Denying jurisdiction is unrelated to legitimate state interests because by refusing to grant same-sex divorces, same-sex couples remain married—the exact result the state complains of in the first instance.
Keywords: divorce, sexual orientation, Constitutional Law
Suggested Citation: Suggested Citation
Stinson, Judith M., The Right to (Same-Sex) Divorce (September 13, 2011). 62 CASE W. RES. L. REV. 447 (2012). Available at SSRN: https://ssrn.com/abstract=1926660