Same-Sex Divorce in a DoMA State

Abstract

When marriages fail, access to judicial divorce is crucial, and typically readily available. When faced with petitions for divorce from same-sex couples, however, courts in states with Defense of Marriage Acts (“DoMA states”) are flummoxed; indeed, more often than not, courts in DoMA states refuse access to divorce to same-sex couples. In this essay, we demonstrate that such refusals fail on three levels. First, the denial of access to divorce is bad policy because it traps couples in defunct relationships and leaves families in a sort of legal limbo — married in some jurisdictions, not married in others, and unable to achieve the finality of divorce. Second, it is constitutionally suspect because the denial of access to divorce violates principles of substantive due process and constitutes unconstitutional discrimination under established equal protection jurisprudence. Finally, the denial of same-sex divorce is premised on an unnecessarily narrow view of judicial power. State courts, even in DoMA states, have the power to hear and decide divorce petitions — same-sex or not. In addition, this essay articulates various paths to obtaining same-sex divorce in DoMA states.

Keywords: Defense of Marriage Act, DoMA, divorce, same-sex couples, same-sex marriage, marriage