Do Married Gay Couples Have a Constitutional Right to Get Divorced?

Full cake and credit.

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So long as gay couples are able to get married, some of them are going to want to get divorced. The legal underpinnings of gay divorce might seem obvious: Anywhere gay marriage is legal, gay divorce should be, too. But what about gay couples who get married in Massachusetts but want to get divorced in Texas? If Texas won’t recognize their marriage, does it at least have a constitutional duty to recognize their divorce?

There are three legal routes to legalizing gay divorce in states like Texas. The first route is to use the divorce question as a vehicle through which to achieve marriage equality. In order to recognize our divorce, gay couples tell judges, you first have to recognize our marriage—and you can only recognize our marriage by striking down the state’s anti-gay marriage ban.

Gay rights advocacy groups like the Human Rights Campaign don’t love this strategy, because it puts the focus on the dissolution of love by the state, rather than its validation. But legal necessity makes pragmatists of us all, and a number of state-level gay marriage bans, including Florida’s, have been slain through gay divorce cases. The language of these opinions tends to be a little less fervid that of your typical gay marriage decision; divorce does not inspire the same florid passion in judges that marriage so often does. But it’s hard to quibble with a ruling whose ultimate outcome is marriage equality—even if its immediate result is to dissolve one particular marriage.

The second route to obtaining a gay divorce in an anti-gay state would involve establishing a unique right to divorce discrete from, though related to, the right to marry. Thus far, this right is mostly the stuff of theoretical law review articles, but it’s not really that hard to envision. One legal justification for marriage equality is that marriage is a fundamental right protected by the “liberty” guaranteed in the 14th Amendment’s due process clause. If the Constitution truly provides Americans the right to enter into a marriage, this argument goes, shouldn’t they have a similar right to exit a marriage, as well?

Although no court has yet ruled on these exact grounds, some have hinted that divorce between any two married people is a liberty interest protected by the Constitution. The Supreme Court has also ruled that the due process clause protects a citizen’s right to pursue divorce in court. Combine this logic with the principle of judicial restraint, and it’s not hard to imagine a court affirming a gay couple’s divorce—without ruling on the broader issue of marital rights. This compromise wouldn’t represent the height of legal logic, but it would provide basically coherent grounds upon which judges could grant gay divorces.

The third route by which gay couples could obtain a legal divorce in an anti-gay state is even more complicated. According to the Constitution’s full faith and credit clause, states generally have to recognize and honor “public acts, records, and judicial proceedings of every other state.” And in 1869, the Supreme Court held that the clause applied to marriage, requiring states to recognize marriages performed elsewhere. But the court has also recognized a “public policy exemption” to the clause, asserting that a state cannot be forced to violate or nullify its own laws merely to comply with the law in another state.

From the start of the marriage equality movement, gay rights advocates have understood that the public policy exemption prevents married gay couples from using the full faith and credit clause to force anti-gay states to recognize their marriages. But what about gay divorce? Although the law here is somewhat hazy, the Supreme Court has held that the full faith and credit clause generally applies to divorce. And very few states actually proscribe gay divorce, so it’s hard to claim that a state like Texas actually has an affirmative public policy against the practice. By declining to explicitly proscribe gay divorce, Texas seems to have sent a tacit signal that it’s not necessarily opposed to the practice. If that is indeed the case, then a gay married couple might be able to invoke the full faith and credit clause to make Texas grant them a divorce.

Of course, none of this would matter if the Supreme Court simply ruled that the Constitution protects gay people’s right to get married in every state. Until that ruling arrives, however, we’re stuck with this mélange of legal theories to sift through. With any luck, the justices will revisit marriage equality soon and release red-state gay divorcés from their current legal limbo. The issue of gay divorce, in other words, is—like so many constitutional questions of our time—really all in the hands of Justice Anthony Kennedy.