AbstractFor as long as marriage has existed in the United States, divorce has been its necessary opposite. So strong is the need for divorce that the Supreme Court has suggested it is a fundamental right, and every state in the country allows access to no-fault divorce. For opposite-sex couples, legally ending their marriage is possible as a matter of right. For married same-sex couples, however, state DoMAs (Defense of Marriage Acts) have been a stumbling block – preventing access to divorce in some states. Same-sex couples in numerous states are being told by attorneys and judges that they cannot terminate their legal marriage. In a word, these couples are wedlocked. Courts have offered two reasons for refusing to divorce same-sex couples: Some courts assert that they do not have subject-matter jurisdiction over same-sex divorce. Other courts maintain that same-sex divorce is not a claim for which relief can be granted. In this article, we demonstrate how these courts are wrong. Assertions regarding lack of subject-matter jurisdiction over same-sex marriage have been justified by misguided readings of state DoMAs and misunderstandings of state court jurisdiction. Similarly, the holding that courts cannot provide relief to same-sex couples seeking divorce is based on the misinterpretation of the requirements of state DoMAs. Moreover, refusing to allow same-sex couples to divorce violates long-standing principles of equity and likely violates the federal constitution.
Publication DateAugust 16, 2011
Citation InformationMorgan L. Holcomb. "Wedlocked" ExpressO (2011)
Available at: http://works.bepress.com/morgan_holcomb/1/