Monday, February 14, 2011
Jurisdictions that do not recognize same-sex marriages or civil unions have nevertheless been sites of petitions for divorce or dissolution of a legal status granted in another jurisdiction. In an article forthcoming in California Western International Law Journal, Professor L. Lynn Hogue argues that such a denial is unconstitutional.
Hogue's article is entitled 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, and is available on ssrn here. He bases his argument on what he terms a "trifecta" of three cases: Williams v. North Carolina, 317 U.S. 287 (1942), which considers the validity of migratory divorce, Boddie v. Connecticut, 401 U.S. 371 (1971), holding unconstitutional a mandatory filing fee for divorce, and Hughes v. Fetter, 341 U.S. 609 (1951), a less well known case discussing the Full Faith and Credit Clause. Hogue concludes that this "trifecta," which he amplifies with a host of other cases, must prevail over Congress' Defense of Marriage Act and state jurisdictional rules.
It's a succinct argument suitable for Valentine's Day reading.