MARRIAGE AND DIVORCE
EDITED BY LAUREN EBER, LAUREN KRAUSKOPF, TAYLOR RYAN-NEDD,
MADISON ORLOFSKI, JENNY LINARES, & ANNA BRULE
I. INTRODUCTION.......................................... 755
II. SAME-SEX MARRIAGE .................................... 756
A. BACKGROUND ...................................... 756
B. THE OBERGEFELL HOLDING............................. 757
C. IMPLEMENTATION AND ENFORCEMENT CHALLENGES SINCE
OBERGEFELL ....................................... 759
III. STATE REGULATION OF MRRIAGE ............................ 761
A. JURISDICTION AND RECOGNITION ......................... 761
B. RIGHTS RESULTING FROM FORMATION ..................... 764
C. PLURAL MARRIAGE .................................. 771
D. COVENANT MARRIAGE ................................ 772
E. STATUS OF CIVIL UNIONS AND DOMESTIC PARTNERSHIPS ........ 774
F. CHILD MARRIAGE ................................... 774
IV. DIVORCE AND DISSOLUTION STRUCTURES ....................... 775
A. DIVORCE STRUCTURES ................................ 775
1. Jurisdiction ......................................... 776
2. Fault-Based Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777
3. No-Fault Divorce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778
a. Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . 779
4. Dissolution of Covenant Marriage . . . . . . . . . . . . . . . . . . . . . 780
B. ALTERNATIVE REMEDIES............................... 781
1. Remedies Under Tort Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 781
2. Alternative Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . 782
C. DIVORCE ISSUES FOR SAME-SEX UNIONS ................... 783
D. NON-TRADITIONAL FAMILY STRUCTURES ................... 784
V. FORUM SHOPPING ....................................... 786
VI. CONCLUSION .......................................... 786
APPENDIX A: SELECTED MARRIAGE REGULATIONS BY JURISDICTION 788
. . . . . . . . .
APPENDIX B: SELECTED DIVORCE REGULATIONS BY JURISDICTION 80
8
..........
I. INTRODUCTION
Though many people view marriage as private, religious, and sacred, marriage
is a legal relationship regulated by the state. State regulation of the formation and
dissolution of marriage must continually respond to changes in societal objec-
tives, cultural diversity, and a shared understanding of marriage as both a legal
755
and spiritual construct. This Article will focus on the evolving role of state super-
vision and federal oversight in relation to marriage and divorce. Part II examines
Obergefell v. Hodges, the 2015 Supreme Court case that upheld same-sex mar-
riage as constitutionally required throughout the nation, its implication on related
areas of law, and implementation challenges since the legalization of same-sex
marriage. Part III considers the regulation of marriage, including restrictions on
child marriage, and the economic and societal benefits derived from marriage.
Part IV discusses recent developments in divorce law, including the rise of no-
fault divorce statutes, uses of tort law and alternative dispute resolution for rem-
edies, the dissolution of same-sex marriages, and issues surrounding non-tradi-
tional family structures. Part V introduces the issue of forum shopping as it
pertains to state marriage and divorce laws.
II. SAME-SEX MARRIAGE
A. BACKGROUND
The first case demanding equal treatment with regard to marriage for same-sex
couples was litigated in the early 1970s; the petitioners were unsuccessful.
1
Between that time and 2015, same-sex couples continually challenged the con-
cept that marriage was solely between a man and a woman in an effort to gain the
same recognition and benefits for their relationships as those conferred upon op-
posite-sex couples. Both individual states and Congress resisted those challenges,
initiating efforts to restrict marriage to opposite-sex couples with varying degrees
of success.
In 2013, the Supreme Court struck down Section 3 of the Defense of Marriage
Act (“DOMA”), which had restricted the federal definition of marriage to include
only those unions between a man and a woman and limited the term “spouse” to
refer only to a person of the opposite sex.
2
The Court held that DOMA was
unconstitutional because it deprived same-sex couples of equal liberty, which is
protected by the Fifth Amendment.
3
DOMA’s definition of marriage controlled
over 1,000 federal laws in which marital or spousal status is addressed; as such,
Section 3 of DOMA had effectively restricted same-sex couples’ access to federal
benefits, even if they were legally married according to state law.
4
Although Obergefell v. Hodges made DOMA unenforceable, the law’s validity
legality of same-sex marriages would fall back [to] preexisting state laws”
5
State Same-Sex Marriage Laws Without Obergefell, NAT’L CONF. OF STATE LEGISLATURES (July
2022), https://perma.cc/SG78-PPU8.
—a
probability Justice Thomas made clear in his concurring opinion in Dobbs v.
Pub. L. No. 118-106).
3. See Windsor, 570 U.S. at 745.
4. Id. at 761, 772.
5.
756 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:755
Jackson Women’s Health.
6
Sheryl Gay Stolberg, Thomas’s concurring opinion raises questions about what rights might be
next, N.Y. TIMES (June 24, 2022), https://perma.cc/65NV-M8YQ.
Faced with this prospect, the Respect for Marriage
Act (RFMA) was signed into law on December 13, 2022.
7
The Act promises legal
protections for marriage equality.
8
Bipartisan Group Leads Introduction of Respect for Marriage Act, HOUSE COMM. ON JUDICIARY
(July 18, 2022), https://perma.cc/3UJ8-85ZE.
The RFMA repealed and replaced DOMA pro-
visions that defined marriage as only between a man and a woman. Moreover,
RFMA prohibits states from denying full faith and credit to an out-of-state mar-
riage based on sex, race, ethnicity or national origin; creates a private right of
action for any individual harmed by a violation of the Act; and grants the
Attorney General the authority to pursue enforcement actions.
9
Bill to protect same-sex and interracial marriage passes overwhelmingly in the House, NPR (July
19, 2022), https://perma.cc/ME2B-F3TT; Mark Joseph Stern, The New Marriage Equality Bill Doesn’t
Just Repeal DOMA. It Does Something Better., SLATE (July 21, 2022), https://perma.cc/JDW9-PRAL.
Notably, the
RFMA does not codify the holding from Obergefell , since it does not require ev-
ery state to license same-sex marriages.
10
Practically, the RFMA ensures that ev-
ery same-sex and interracial couple remains protected even if their own state
nullifies their marriage.
11
B. THE OBERGEFELL HOLDING
In 2015, the Supreme Court decided Obergefell v. Hodges, a case that fundamen-
tally changed the landscape of marriage equality for same-sex couples across the
nation. When James Obergefell’s long-time partner, John Arthur, was diagnosed
with amyotrophic lateral sclerosis (“ALS”), the two resolved to marry before
Arthur died.
12
They traveled from Ohio to Maryland, where same-sex marriage
was legal, “[t]o fulfill their mutual promise.”
13
Three months later, Arthur passed
away.
14
Ohio law did not recognize the marriage and refused to list Obergefell as
the surviving spouse on Arthur’s death certificate.
15
Obergefell brought suit to be
acknowledged as the surviving spouse and took his case to the Supreme Court.
16
In
a 5–4 opinion, the Court held that “same-sex couples may exercise the fundamental
right to marry in all States . . . [and] there is no lawful basis for a State to refuse to
recognize a lawful same-sex marriage performed in another State.”
17
This decision
nullified state bans on same-sex marriage, including bans on official recognition of
those marriages that were performed out-of-state.
18
Lyle Denniston, Opinion analysis: Marriage now open to same-sex couples, SCOTUSBLOG
(June 26, 2015), https://perma.cc/7E3V-885A.
6.
7. Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305 (2022).
8.
9.
10. Stern, supra note 9.
11. Id.
13. Id.
14. Id.
15. Id.
16. See id.
18.
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