We Need To Fight For Same-Sex Divorce, Too

Zach Galifianakis’ Between Two Ferns bit with President Obama “(SP?)” last March is a strong contender for top 5 funniest things this year. You’ve probably seen it, but if not, kindly watch right now. His jabs at Heath Care Dot Gov get me every time.

One of my favorite exchanges from the interview goes like this:

Galifianakis: You know what I would do if I were president, Mr. President? I would make same-sex divorce illegal. Then see how bad they want it.

Obama: I think that’s why you’re not president.

Brilliant, brilliant, brilliant. However, at the risk of being the least fun person at this party, it’s important to point out we don’t have to wait for a President Galifianakis. Same-sex divorce is illegal or de facto illegal in over half of U.S. states today.

This is not exactly a novel issue, but demand for same-sex divorce is growing and laws are evolving as we speak. Seventeen states and D.C. have legalized same-sex marriage. Like marriage, divorce is a civil right. We should be angry about unconstitutional hurdles that same-sex couples face when they petition courts to please just let them not be married.

The basic scenario for a same-sex couple that wants divorce is: They marry legally in State A. They move to State B, which doesn’t allow same-sex marriage. The flame dies, something dramatic happens, they took things too fast, etc. State B won’t grant them a divorce. They can’t just take a trip back to State A. Usually, there are requirements that at least one partner live in State A for six months before the court can grant a divorce.

Can you imagine being stuck in this fuzzy space where you don’t know whether you’re still married or not? How about with kids in the equation? As of yet, divorce has not been legally declared a fundamental right. States can deny jurisdiction — cutting off access to the legal process for these couples — if same-sex divorce is against their public policy.

The BS some state governments will spew to justify not granting same-sex divorces would be impressive if it wasn’t so unbelievable. Here’s a common sense (though admittedly simplified) point: If you don’t want same-sex couples to be married, then why are you making the effort to keep them from getting divorced?

Most of these states justify their refusal to grant divorces by saying that it would recognize the validity of the same-sex marriage in the first place. Marriage issues are left almost exclusivity to states, so they are free to pass laws saying, implicitly or explicitly, that same-sex marriages performed out of state are void, invalid, and/or against public policy. Lawrence v. Texas made it illegal for states to criminalize “homosexual activity,” but it’s still open season on refusing to recognize same-sex marriages by denying divorce petitions.

There’s a tolerance spectrum among states that don’t allow same-sex marriage. Some states’ laws make it quite clear where they stand. My home state of North Carolina, also where President Galifianakis is from, amended the state constitution two years ago to say that the only valid and recognized legal union is between one man and one woman. That was just backup protection in case someone couldn’t find the state law that already said the same thing.

Here’s what the law already said before the amendment: “Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.”

Overkill much? It’s heartbreaking to imagine someone taking the time to go to a polling place to vote for a law against same-sex legal protections—especially when there was already a law that said that exact thing! In legal terms: Way harsh, Tai.

Again, this is not a brand new issue, and I may be preaching to the choir. It’s frustrating. It makes you question humanity. But, there is hope…slowly, but not quite surely — yet.

Judges in a few states that don’t allow same-sex marriage have taken creative approaches to grant divorce petitions. Examples:

1. In Arizona, a court declared a marriage void, which isn’t a divorce, but the court still oversaw division of assets and carried out other divorce court-ish duties.
2. In Wyoming, the state Supreme Court held that same-sex marriage was merely a condition precedent to divorce, and that granting divorce was not recognition of marriage. Way to use language as a tool for good, guys!
3. In Texas, a U.S. District Court recently struck down the ban on same-sex divorce. It was immediately stayed and is currently on appeal, but this is good. Progress! Dissent!

One of my favorite examples of a court going rogue for love comes from not this century, not last century, but from the 1800s. In Ross, an 1877 North Carolina case, an interracial couple got legally married in South Carolina and then moved to North Carolina, where interracial marriage was illegal and void. They were charged criminally, but the state Supreme Court said their legal South Carolina marriage was a good defense, even though interracial marriage was “revolting to [them] and all persons” in North Carolina.

This language would be pretty inappropriate in a court decision today. But that a court 100 years ago could recognize that marriage, while at the same time calling it “revolting” gives hope, in an odd, dark way. We should be pressuring states whose public policy is against same-sex divorce to do it anyhow.

When we fight for same-sex marriage, we should fight for same-sex divorce too. It’s not romantic, but it’s practical and it’s just.