The States Have Different Laws Regulating Divorce ... So Why Not Gay Marriage, too?

Joanna Grossman, associate professor of law at Hofstra University, in findlaw.com (July 15, 2004):

...The specific issues raised in the battle over same-sex marriage are new. But a broad question that is arising has been raised before in our history.

The question is this: How can we reconcile -- or should we simply tolerate - conflicts among state statutes relating to family law -- an area oft said to be"reserved to the states"?

America confronted this question earlier when it came to grounds for divorce. Throughout the Nineteenth Century, and well into the Twentieth, there were significant variations in divorce laws.

Some states made divorce available on several fault grounds; some, only on grounds of adultery; and at least one, South Carolina, simply did not permit divorce at all.

In addition, some states required several years of residency as a prerequisite to filing for divorce; others allowed periods of as short as six weeks or even none at all.

Finally, some states permitted remarriage immediately; some permitted it only after a waiting period, and others not at all, at least for the at-fault spouse.

The Lessons of Our Experience With Differing State Divorce Laws

The lack of uniformity among divorce laws raised two sets of concerns.

First, it was procedurally complicated for states to have different standards for divorce -- particularly if a stricter state might refuse recognition to a decree of divorce from a state with more lax standards. A person might have a different marital status, state-by-state, as he or she traveled. Crossing a state line could mean a single person was considered still married - a ridiculous result.

Second, the different standards for divorce irked anti-divorce moralists. Opponents of divorce feared that easier divorce would dilute the tradition of marriage nationwide. They also feared that residents of strict states might evade their own state's laws by obtaining"quickie" -- or otherwise easier -- divorces in more lenient jurisdictions.

The proliferation of lax divorce laws, they argued, would undermine marriage (as they then knew it), society, and, ultimately, civilization.

Sound familiar? President Bush is, of course, sounding this very same theme today when it comes to same-sex marriage - arguing, again, that marriage is"the most fundamental institution of civilization," and that same-sex marriage would raze that institution.

Amendments Federalizing Marriage and Divorce: Oft Tried, Never Successful

Congress's tactic, in proposing the FMA, will sound familiar to legal historians. According to Cardozo Law Professor Edward Stein, putting the FMA aside, in our history seventy-seven other constitutional amendments have been proposed that would have given Congress the power to regulate marriage and divorce at the national level. Three would have enshrined the once commonplace ban on interracial marriage in the constitution. But none ever even made it to a vote.

The proposals to constitutionally ban interracial marriage would have fundamentally changed the nature of the Constitution - as would the contemporary FMA. The Constitution has always served to guarantee minimum rights and liberties. It has almost never been used to rein in individual rights. The only exception is the Eighteenth Amendment--which established Prohibition--and its repeal only 14 years after ratification speaks for itself.

Other Attempts Toward Uniformity In Marriage and Divorce: Also Failures

But the proposed amendments to give Congress the power to regulate marriage and divorce law would have erected a fundamental change to our legal system as well. State regulation of family law has been the rule, reined in only by the enforcement of constitutionally minimum guarantees.

Outside of the Congressional arena, uniformity in state marriage laws was also separately pursued, through bodies like the National Conference of Commissioners on Uniform State Laws. These bodies - private organizations whose work did not have the force of law -"adopted" (and urged state legislatures to adopt) several uniform divorce laws. But none of these laws was ever adopted by more than a few states. And, therefore, uniformity certainly did not result.

It's no wonder that all the proposals for uniformity failed: Strict states did not want to adopt more lenient laws. Lenient states did not want to adopt stricter laws. And neither wanted Congress to pick the other states' view, and impose it on them.

States thus learned to co-exist with non-uniform divorce laws.

A Supreme Court Case Tolerates Inter-State Differences on Divorce

There were, of course, periodic flare-ups -- pitting state against state. One such case, Williams v. North Carolina (Williams I), made it to the United States Supreme Court, which issued an opinion in 1942.

In that case, two North Carolina residents absconded to Las Vegas to divorce their respective spouses, and marry each other. They then returned home - only to be arrested as bigamists.

North Carolina refused to recognize the Nevada divorce decrees. But the Supreme Court, in essence, said that North Carolina had to do so -- as long as the plaintiffs met Nevada's procedural requirements before filing for divorce, which they had. (They said they'd lived in an autopark for the requisite forty-two days, thus establishing a legal domicile.)

The majority opinion recognized that its ruling would, in some modest way, dilute North Carolina's right to insist on strict moral standards for divorce. But it preferred that consequence to the"disastrous" harm that would result if a mere step over a state line could transmute a couple from lawful divorcees to bigamists.

Although a later proceeding in the same case left North Carolina free to disregard Nevada's decree (Williams II), it was because of a showing that Nevada's requirements had not in fact been met. The core principle of the first Williams decision thus remains intact, and in the almost sixty years since Williams I, states have by and large respected each others' divorces - even if the terms on which one state might grant a divorce were abhorrent to another.

The consequences? The Republic did not fall. And marriage continued to be the central institution of American society.

The Lessons of History: When the States Disagree on Marriage, It's Okay

What are the lessons we can take from history that are relevant to the current same-sex marriage debates?

First, for better or worse, states have clung tightly to their power to make rules about marriage and divorce. When some states have restricted marriage and divorce, other states have refused to follow their lead - and yet their marriages and divorce decrees, thanks to Williams I, have generally still been respected by other states.

Second, there is one limit on states' power to regulate marriage and divorce: States cannot do so in a way that violates the federal constitution's minimum guarantees of equality. And if they try, the U.S. Supreme Court can step in to abolish the offensive practice. This is exactly what happened in Loving v. Virginia, when the Supreme Court held Virginia's ban on interracial marriage unconstitutional.

Third, in many areas of law, states provide their citizens with greater individual rights - when it comes to family law -- than those promised by the federal constitution.

In my view, this generosity on the part of some states in interpreting what rights individuals enjoy is something to be encouraged, not stifled. Thus, Massachusetts should not be punished for providing its citizens with greater civil rights than other states. Indeed, it should be applauded for halting the arbitrary and discriminatory enforcement of marriage laws.

For now, the Federal Marriage Amendment has failed - its only lasting effect will be on the polls rather than the Constitution. It thus joins the long list of failed attempts to amend the constitution on issues of marriage and divorce.

It seems, then, that our Constitution will continue to say, on the topic of marriage, only what it has always said: Simply that the marriage laws, like all others, must provide equal protection of the law to all. In Loving, that meant different-race marriages had to be legal in all states. Whether it means same-sex marriages have to be legal in all states, too, remains to be seen.