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Ari Ezra Waldman explains why some same-sex couples can divorce in states that won’t let them marry

Marriage equality

coloradoStateSealWriting at Towleroad, Ari Ezra Waldman has a new column about an unusual hiccup in the progress towards full marriage equality: there are some states, surprisingly, where same-sex couples can be granted divorces even though those same couples are prohibited from marrying (in that state, at least) in the first place.

Waldman’s column comes on the heels of news out of Colorado from last week, where a lesbian couples was granted the state’s first same-sex divorce, thanks to the states recently passed civil unions measure.  From Waldman’s piece:

Divorces are court orders, which have to be recognized across state boundaries. Marriages are not. That means that the Constitution’s full faith and credit clause applies to divoces, not to marriages. So, the Constitution gives us a national right to divorce, but not a national right to marry.

It’s a quirk of the laws that govern the relationships between the federal government and the states and between the various states themselves that divorces must be recognized across state lines but marriages do not. Divorces are court orders, which means they are products of a judicial process, with two sides, attorneys (usually), and a judge. Marriages are not orders or “final decisions” of any court. They are licenses, grants from the executive arm of the state government (usually a clerk’s office). This means that if West Virginia is vehemently opposed to, say, first cousins marrying (which it is), then that state does not have to recognize that first cousins who married in New York (which allows them to) are married. But if those once-married first cousins got divorced, West Virginia would have to recognize the results of the divorce order.

Marriages don’t have the same character as those kinds of orders. Perhaps that shouldn’t matter: the clause does refer to “records” as well as “judicial proceedings.” But for various historical reasons, the default marriage law rule is that a state can refuse to recognize an out-of-state, or alien, marriage if it contradicts that state’s public policy. That is not true of court judgments like damage awards and divorce orders.

The result is that we nationalized same-sex divorce before we nationalized same-sex marriage. A public policy that does that is perverse, doing more damage to the institution of marriage than any two men in love ever could.

Waldman has a point: it seems backwards for states to allow same-sex spouses to sunder their legal relation to one another but prohibit them from doing so in the first place.  But such is the state of American marital and divorce law!  In the meantime, it is positive–although perhaps bittersweet–that same-sex couples are being granted increasing access to the same divorce proceedings that different-sex couples are permitted to obtain.

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