Monday, February 14, 2011

Constitutional Right to Same-Sex "Divorce"

394px-Broken_Heart_symbol.svg 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.

RR

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