Divorce, Same-Sex Style

I am divorced and so I believe strongly that I have given up any right I may have had in the past to make any judgments about the desire of people, any people, to try to make a marriage work. Having failed at it, who am I to say that any couple can't give it a shot? That's probably why I have never understood why so many divorced people seem to be against same-sex marriage even though they already have proven, through their divorces, that the "sanctity" of marriage isn't all it is cracked up to be. More power to anyone, or any couple, that can manage marriage better than the 50 percent or so of us who cannot.

Which brings me at last to the newest trend in the same-sex couples game-- same-sex divorce. It should come as no surprise to anyone that same-sex couples are just as prone to separating, and getting "divorced" as heterosexual couples. In Rhode Island Wednesday, a trial judge refused to decide whether a same-sex couple married in Massachusetts (where it is legal, remember) could actually get divorced in Rhode Island (where currently it is not). The Supreme Court of Rhode Island now has that particular hot potato and quite frankly I have no idea how that court will rule.

Meanwhile, high-profile same-sex couples, including the named plaintiffs in Massachusetts' landmark case, are splitting up just like other couples do. In San Francisco, the "namesake" same-sex couple in that state's fight also split up last month and a similarly-situated couple in Vermont also appears to have done the same. Did the stress of being "pioneers" in this new field of the law contribute to the break-ups? Who knows. But I do know it's hard enough to make a relationship successful when the full glare of the media spotlight is not upon a couple.

So now, even while the courts have not quite universally made up their minds about how legal same-sex marriage is around the country, the issue of same-sex divorce has been thrust upon judges. I suppose that was inevitable. Human interaction always has been ahead of the legal curve-- the law eternally has to catch up to how we behave. Opponents of same-sex marriage point to these break-ups as proof that there can be no "sanctity" in a same-sex union. As a divorced man, I see the opposite. To me, these high-profile break-ups help prove that same-sex couples are just as capable of dreaming and failing as are so many of the rest of us.

By Andrew Cohen |  December 7, 2006; 10:24 AM ET
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The law of unintended consequences. I myself can't predict what the RI supreme court will do. What I would do, however, is say this. We can't divorce you because as far as we are concerned, you aren't married. Go to Mass. and let them figure it out. And don't come back here with property and custody fights and think we will treat you any differently from any other two unmarried people who split up. In my view, this is a can of worms that one vote in Mass. created, and dumping it back there is appropriate. If the RI legislature wants to get involved and make additions to family laws, great. Otherwise, one judges' decision in Mass. shouldn't commit the whole country to dealing with the effects.

Posted by: Kamdog | December 7, 2006 02:58 PM

Will someone please explain why gays are so special they shouldn't have to experience the joys of property battles, custody fights, attorney's fee disputes, nutcase family court judges, money-grubbing divorce lawyers, and all the fun that goes with divorce? Who are to just walk away from it?

Posted by: Garak | December 7, 2006 03:05 PM

I don't want to walk away from it. I want to marry my partner. I don't intend to ever get a divorce but I guess nobody who gets married intends it. What I want though is to be married like everyone else, just like we own a home, pay taxes, work, contribute to our community, godparent a child, vote in elections, volunteer. I want us to be respectable householders of our community. I'm very old fashioned.

Posted by: Paul Browne | December 7, 2006 05:13 PM

Nobody's saying that this gay couple doesn't "want" to experience divorce; the only issue is which state's courts get to have the "fun" of divorcing them.

I will say I'm inclined to take the view that Massachusetts is the proper state to hear the divorce, though. Might be another thing if the couple lived in San Francisco, but RI is right next door. Hard to argue there's a major hardship by having their divorce heard in Massachusetts.

Posted by: Dave | December 7, 2006 05:25 PM

"Who is it to say what is or what isn't or what can or shall not be?" This country's laws will be amended for all of its citizens to marry (be it gay or straight). Now or later is really is the question. But no laws or institutions will stop any free person from doing whatever they want to do (period). Under the laws of most states, there will always be more divorces with straight people than with gays, simply because gays cannot marry in every state anyway. But marriage is just what it is (whether its common law or otherwise)

Posted by: Daniel | December 7, 2006 11:40 PM

Of course social conservatives will try to use gay divorce to impugn gay marriage - we're always damned if we do and damned if we don't with that crowd. Gays hate America and they shouldn't be allowed to serve their country in the military. Gays are sexually promiscuous and don't let them ever marry. Gays really don't like being gay and they're always flaunting being gay. Gays lead a deviant "lifestyle" and how dare they try to live like everyone else, etc. etc..

Posted by: John | December 8, 2006 10:20 AM

It's not as simple as saying "Go to Massachusetts, even if it is next door." In order to hear a divorce case, a court has to have jurisdiction -- a Massachusetts court does not have jurisdiction over the divorce of a California (or Rhode Island) couple if they don't have residency in Massachusetts. Some readers will be familiar with so-called "quickie" divorces where people were able to go to a different state (Nevada?) or another country and get a divorce.

Most states, however, require some period of defined residency.

It is a general rule that courts of one state will recognize the acts of another state -- principles of comity and full faith and credit for judgments and decrees are at work here.
So, in general, if one state legalizes a relationship, other states have to accept it - there is some debate about this going on, but it seems likely that if a same-sex marriage is performed in Massachusetts, Rhode Island could not refuse to honor it or prevent the couple from living there.


Whether RI has to "honor" the "marriage" in the sense of applying its divorce laws to that union is not as clear. It is reasonably likely that a constitutional requirement to treat all marriages equally could be found under the US Constitution. This could be done on equal protection grounds, anti-discrimination grounds, or the privileges and immunities clause.

However, avoiding the constitutional issue, an argument could be made that even absent statutory authority, the courts have equitable power to dissolve unions or marriages and, in the case of a same-sex marriage, since no statute governs the situation, perhaps common law principles or just plain old common sense (by extrapolating from analogous principles in heterosexual marriage divorces) should rule the day. This approach does not require RI to legalize or perform same-sex marriages, but to allow its courts to regulate relationships between RI citizens who happen to have been married elsewhere -- something the RI courts do for heterosexual couples all the time.

Posted by: Anil | December 8, 2006 12:35 PM

There is no law that would prevent a couple from living together in any state -- unless one of them were under majority. And this couple must have been either residents of MA or the State of Rhode Island must honor (recognize) same-sex marriage performed out of state, as Massachusettes law explicitly forbids marriages that would otherwise not be recognized by the couple's state of citizenship.

As to whether the State of Rhode Island needs to honor the marriage, the "Defense of Marriage Act," which defines a marriage as between one man and one woman exempts states from needing to honor a marriage unless it is recognized in their law, either statute, state constitution or judicial fiat. And even allowing a marriage and recognizing it does not necessarily require allowing its dissolution -- note that the Canadian Supreme Court needed to intervene to define a right of same-sex marriage divorce because the Canadian law only applied to "mixed" marriages.

But it seems to me the objective of divorce is a back-door way to raise the marriage issue on a Federal level. That is rather than win in any state or country (except, I believe Spain?) in a legislature or through referendum, the same-sex marriage movement resorts to litigation. And of course, this is why an amendment (one way or the other) to the U.S. Constituion is NECESSARY to resolve the question.

Posted by: Constitutionalist | December 8, 2006 01:31 PM

Their assets and lives are joined, much like a business entity. Any state should provide a divorce, allowing for local restrictions such a residency period. It's commonsensical. Too bad so many judges are prone to illogical biased thinking.

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Posted by: power | December 10, 2006 07:51 PM

Right-wing Christians who think that nobody should get divorced and that all couples should stick with eachother regardless of what either do should stop same-sex divorce immediately!

Posted by: Oh, to have a Blog | December 13, 2006 12:07 AM

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