The right to divorce isn’t as upbeat a topic as the right to marry…
While discussion of gay marriage tends to focus on equality and the right of every person, no matter what their sexual preference, to be part of a loving relationship, the fact is that marriage isn’t merely an “institution,” but a legal status. And when loving relationships turn less loving than they once were, the ending of that legal status can only be accomplished by another legal status, divorce.
As states now recognize gay marriage, there is little doubt that it’s here, it’s queer and it’s not going anywhere. Get over it. That said, the flip side of the legal status is creating problems:
“The marriage system is a way we recognize and protect the commitments people make to their partner,” said James Esseks, director of the Lesbian, Gay, Bisexual and Transgender Project at the American Civil Liberties Union.
“Part of that system is creating a predictable, regularized way of dealing with the reality that relationships sometimes end,” he said. “Those are the times people are the worst to each other, and that’s why we have divorce courts. There’s got to be an adult in the room.”
For married couples living in states that do not recognize gay marriage, they similarly provide no means of divorce.
Even as the number of states legalizing same-sex marriage will soon grow to 16, most states — like Mississippi — refuse to recognize such unions or to help dissolve them. Gay couples who move to those states after marrying elsewhere face roadblocks if they wish to divorce, as do couples from those states who make a brief foray out-of-state to get married.
Often, such couples in non-recognition states would have to move back to the state where they were married and establish residency in order to get divorced — an option that can be unworkable in many cases.
What this reflects is the clash of the regulatory state and people’s reality. It’s still fairly problematic for a couple to get a divorce, even with the advent of no-fault. There are forms to complete, usually requiring a lawyer at some expense, all to end an intimate relationship that the state has decided is so important that it gets to have a say.
The old rule is that the state has an interest in marriage, for the sake of stability and the children, that it gets to decide how divorce happens and when it’s allowed. So what if you and your spouse are more inclined to slit each other’s throat than sit down to dinner? You must be able to convince a judge that you deserve to be divorced before the state will grant you one. And, of course, this excludes all issues of property and children, which just totally muddies the waters.
While the issues arise in the context of gay marriage, the questions apply to divorce in general. The whole “sacred institution” concept that has long been a foundation for the legal view of marriage is an archaic reminder of our confused relationship between religion and secular government. When we took it for granted, that was one thing, but now that it’s on the table, it’s time for some scrutiny.
Most weddings are performed by clergy, and reflect our quaint desire for the pageantry of the wedding ceremony. But then, it doesn’t count unless we purchase a license from the state. And the state has to decide whether it feels like giving a license, provided that they like the sex of your partner. Who made it the state’s business, anyway?
And when it comes to dissolving the legal status of marriage, what business does the state have in deciding whether your reasons are good enough? If you want to dissolve a business with a separate legal entity, you do so. Fill out the forms, pay the fee (which the state always has an interest in) and, boom, done.
The solution to the gay divorce issues is hardly a difficult one to manage, even for those states that want to adamantly remain in the caboose of marital freedom. The law need not acknowledge or favor marriage of any sort. It need only provide for divorce of any marriage legally recognized in any state. No big deal. It’s just the termination of a legal status.
But then, why should anybody, gay or straight, have to prove to the satisfaction of the state that they’re worthy of divorce anyway? Go to the local county clerk, fill out the form that says you swear that you really, really want to be divorced, pay the fee (which the state always has an interest in), and so you should be.
Even though we’ve all gotten used to the state regulating divorce, perhaps the time has come to rethink what business the state has in fostering the “until death do us part” crap. Just as marriage is a personal choice between two people, so too is divorce. It’s not that we think it’s a good thing, but that we really don’t need the state to validate our choice to dissolve a marriage any more than we need the state to approve our choice to enter into one.