Saturday, April 4, 2020
Brian L. Frye (Kentucky) & Maybell Romero (NIU) recently posted to SSRN their paper The Right to Unmarry: A Proposal. Here is the abstract:
BLF: This is a marriage proposal in the form of a law review article. In this article, I observe that Maybell Romero and I are in love. I want to marry her, and I believe she wants to marry me. At least I’ll find out pretty soon. But we cannot marry each other right now, because we are both currently married to other people.
Maybell and I want to end our existing marriages, and our respective spouses have even agreed to divorce. But the government will not allow us to marry each other until it decides to terminate our current marriages.
Maybell is unaware of this prologue to our article, describing our personal circumstances, but I’m sure she’ll see it soon. Wish me luck.
The Constitution protects the fundamental right to marry the person of your choice, so long as the choice is mutual. Any two people can agree to marry each other, and the government cannot stop them.
But the government can and does regulate the dissolution of marriages. While people can divorce, they need the government’s permission. A marriage isn’t over until the government says it is. And a person cannot remarry until their divorce is final. In other words, The government cannot prevent people from marrying each other, but it can and does force them to remain married.
We believe that people should be able to end a marriage and start a new one whenever they want. Indeed, we believe it is their constitutional right. If due process protects the right to marry based on autonomy and dignity, then it must also protect the right to unmarry on the same grounds. If it offends autonomy and dignity to prohibit a marriage, it offends autonomy and dignity to preserve a marriage, against the will of the married.
The state can legitimately regulate the allocation of property when a marriage is dissolved, just like it regulates the dissolution of any other partnership. But it cannot legitimately force people to remain married against their will or prevent them from remarrying. As always, love will out.