# Is there a constitutional right to divorce? **URL:** \ **Category:** Great Debates\ **Created:** [November 19, 2009, 4:04pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156 "2009-11-19T16:04:40Z")\ **Posts on this page:** 8\ **Page:** 3
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 19, 2009, 6:40pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/41 "2009-11-19T18:40:36Z")
I’m guessing that the kind of person with the necessary grounds to take this case to SCOTUS, i.e. someone who really really didn’t want a divorce, is a person to whom being married would be a living hell. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 19, 2009, 7:21pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/42 "2009-11-19T19:21:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Whether or not the analysis is the same, you still can’t cite it. It’s not controlling law. With all due respect, this is not a court. If it were controlling law, we wouldn’t be having this debate, except maybe with the odd witnesser dropping by to explain why it’s Against God’s Law For Them Gays to Marry. He’s demonstrating that one state high court, viewing same-sex marriage, regarded it as an equal protection violation and called for strict scrutiny. If Maine’s high court made a ruling on the state constitution’s anti-self-incrimination clause that was substantively similar to the 5th amendment clause, it would be relevant precedent to a discussion of whether some statement similar to the one in the Maine case was in fact self-incriminatory. Not controlling, but relevant. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 19, 2009, 7:45pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/43 "2009-11-19T19:45:24Z")
It’s not just that it’s in a different jurisdiction. It’s that it wasn’t a federal question at all. Even if the wording in the Hawaiian constitution’s equal-protection-clause-equivalent is identical to the equal protection clause of the 14th amendment, it’s still not relevant. If we were talking about a wholly unprecedented set of circumstances, _then_ you might cite the Hawaiian decision, but only then. ETA: This wasn’t supposed to be a gay marriage debate :smack: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2009, 8:01pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/44 "2009-11-19T20:01:51Z")
It’s true that the specific question of same-sex marriage is not precisely on point to this discussion, but really: where else will you find a fertile ground for courts to opine on the proper level of scrutiny to accord to marriage rights? My only objection was to the blanket statement that laws burdening marriage are subject to strict scrutiny. Obviously they have been under some circumstances in some states, but you cannot safely say it’s universally applicable. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 20, 2009, 12:06am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/45 "2009-11-20T00:06:00Z")
> [@Rumor\_Watkins](#): > > this does not logically follow. the standards set by statute are the same regardless of whether the court “thinks” the divorce is unreasonable or not. > > there’s no statute that says “in order to get a no-fault divorce if you’re divorcing because your wife cheated on you, the filing fee is $50 and a separation period of 48 hours is mandated; in order to get a no-fault divorce if you just don’t like your wife and you have kids, the filing fee is $500 and a separation period of 48 months is mandated”. basically, there is no inquiry as to the reasons for the divorce. (note that this doesn’t affect other incidents of divorce, like spousal maintenance and property separation - reasons for the divorce may matter there). > > restrictions placed on divorce (fees, conditions, etc.) are universal and identical for all divorcing couples - as this is a fundamental right, any differing conditions would trigger strict scrutiny analysis for the disequal treatment of a class of people. Maybe I’m misunderstanding you, but I don’t think what you’re saying is true. State statutes commonly impose a waiting period of six months to a year for no-fault divorce (during which the couple must live apart) but not for divorces for cause. Also, the waiting period is often longer for couples with kids. Example [here](http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-91). ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [November 20, 2009, 12:20am UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/46 "2009-11-20T00:20:10Z")
> [@Tom\_Tildrum](#): > > Maybe I’m misunderstanding you, but I don’t think what you’re saying is true. State statutes commonly impose a waiting period of six months to a year for no-fault divorce (during which the couple must live apart) but not for divorces for cause. Also, the waiting period is often longer for couples with kids. Example [here](http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-91). the kids issue is different because typically for children the state has an overriding interest, above one’s fundamental interest in family relations, in doing what’s best for the child. which makes sense. i’m not saying that states cannot impose requirements, and cannot have separate requirements for different “types” of divorce. what i’m saying is that courts cannot “…prevent, or at least delay, individuals from obtaining a divorce if it thinks that the divorce is unreasonable”. ---
**Author:** ![EristicKallistic](https://avatars.discourse-cdn.com/v4/letter/e/85e7bf/32.png) [@EristicKallistic](https://boards.straightdope.com/u/EristicKallistic)\ **Post date:** [November 20, 2009, 3:53pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/47 "2009-11-20T15:53:37Z")
Wouldn’t it in some ways be a contractual question? If we just take marriage, from a legal perspective, to be a civil contract between two parties, how can the state say “You can never ever get out of this contract, even if you both agree to it”? I mean what if the state decided that, since unemployment is bad, no one could ever end an employment contract, even by mutual agreement? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 20, 2009, 4:09pm UTC](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156/48 "2009-11-20T16:09:39Z")
Well, that’s the thing - marriage, even from a legal perspective, is not just a civil contract. It comes with all sorts of societal, legislative and other baggage that ordinary contracts do not. That gets taken into account in any legal proceeding related to marriage. Other contracts are not treated the same way. Nobody worries about equitable distribution in a breach of contract proceeding; it’s just a matter of “he’s right, you’re wrong, take this money”. [Previous page](https://boards.straightdope.com/t/is-there-a-constitutional-right-to-divorce/518156.md?page=2)