Until this country comes to some consensus on same-sex marriage, and the states adopted uniform laws on the subject (or laws that are at least as uniform as those governing opposite-sex marriage), state courts are going to be faced with a confounding problem: if a same-sex couple gets married in a state that recognizes such unions, what happens if they move to a state that doesn’t recognize them, and then want to get divorced?
Texas doesn’t currently recognize same-sex unions in any form. However, there’s a big difference between granting a same-sex marriage, and ending one. It would seem that a state opposed to same-sex marriage would have no problem ending one. But, the Court’s reasoning went, a divorce is the dissolution of a valid marriage. Since the marriage wasn’t valid under Texas law, no divorce could be granted.
This seems to leave the couple in a bizarre position where they are not legally married, but saddled with many of the legal issues that come with being married, and they cannot end their non-marriage under the laws of the state in which they reside. I’m sure Schrodinger’s Cat can sympathize.
I think that this is a very unfortunate situation – it puts couples in a state of legal limbo that can be difficult to untangle. Now, as much as I’d like to see marriage equality equalized nationwide, I recognize that, for the time being, states are free to decide if they wish to recognize same-sex marriages.
At the same time, one of the most basic freedoms that American citizens enjoy is the freedom to move about the country at will, without significant legal impediments. Obviously, the State of Texas didn’t actively stop this couple from moving there, nor could they. If they had tried, I’m sure we’d be having a totally different conversation.
However, refusing to grant divorces to a significant portion of the population certainly puts up practical barriers to the right to travel, which most of us take for granted. And considering the fact that people usually have very compelling reasons for moving to a different part of the country (school, a new job, family obligations, etc.), these impediments can make a person’s life very difficult.
As a practical matter, it might be easier for everybody involved if states would simply grant divorces to same-sex couples, even if they don’t grant same-sex marriages.
After all, if a state government is, for whatever reason, morally opposed to same-sex marriage, it seems like they would be over the moon at the opportunity to strip a same-sex marriage issued in another state of its legal effect. On the other hand, they might view granting same-sex divorces as giving some legitimacy under their own laws to marriages which they can’t recognize under their own laws.
There are already a few states that don’t grant same-sex marriages, but do recognize those performed out of state, including California (for those performed before Prop. 8 was passed), Maryland, Rhode Island, and New York. These states, presumably, will also grant divorces to same-sex couples married elsewhere under the same terms they’d grant divorces to opposite-sex couples.
Now, one could simply argue that the couple could just file for divorce in the state in which they were married. And that’s certainly true. But why should a couple have to incur the expense and inconvenience of traveling (possibly) thousands of miles, just to exercise a basic legal right that almost every other resident of a state is entitled to?
Being realistic, I recognize that it will probably be a long time before every state (or even a majority of states) has legalized same-sex marriage. However, states could make everybody’s life easier if they’d grant divorces to same-sex couples married in other states our countries. After all, courts would be able to collect more filing fees, family lawyers would have more work, and same-sex couples wishing to end their marriages would be able to divide their property and other assets in an orderly manner, allowing them to move on with their lives, and likely make use of that property which is far more economically efficient than (for example) spending a few years fighting over it.