DISCUSSION

SOURCE: National Public Radio. (2012). “State by State: The Legal Battle Over Gay Marriage.” Associated Press; “The Changing Landscape of Same-Sex Marriage,” by Masuma Ahuja, Robert Barnes, Emily Chow and Cristina Rivero. Washington Post, July 28, 2014. While state legislatures and Congress have not been as quick to adopt broad definitions of marriage and family as many individuals have, the picture of legal prohibition and recognition around the country makes for a rapidly changing map. Figure 11.5 shows the laws in effect at the time this book went to press. Same-sex couples who seek to marry—and their advocates—often argue that they face mass denial of a basic civil right on the grounds of sexual orientation. Why should those in a committed relationship be denied the right to sanctify and legalize it regardless of sexual orientation? Those who object to same-sex marriage respond that this broad definition of marriage constitutes a threat to traditional marriage and families, not least because same-sex marriage cannot produce shared biological children. As well, say some opponents, the legitimation of same-sex marriage could lead to its spread, threatening heterosexual marriage. While more people are beginning to favor the legalization of same-sex marriage, a substantial minority of Americans remain vehemently opposed (Figure 11.6). With about half of all U.S. marriages ending in divorce, it is not surprising that the battle for same-sex partners to secure marriage rights has recently evolved into a fight for their right to divorce, particularly in cases where couples share children or own property in common. U.S. divorce rates may be driven by many factors, including frustration with waning passion, economic stress, and poor compatibility of partners. One factor sometimes noted by observers, however—the ease of divorce in the United States, partly a product of no-fault divorce laws—does not apply to same-sex partners. A problem arises when a same-sex couple married in a state permitting their legal union seek a divorce in a state that does not recognize gay and lesbian marriages. In a 2012 case in the state of Maryland, a lesbian couple married in 2008 in California sought a divorce. The women were, according to the Washington Post, expecting a smooth and simple legal procedure; their property had been divided, the divorce was uncontested, and they had no children. They were stunned when the judge denied them. As the Post‘s story points out, the “case represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. The laws are constantly evolving” (McCarthy, 2012). A Maryland court ruled in May 2012, however, that the couple could proceed with their divorce—though, ironically, same-sex couples were denied the right to marry in Maryland until 2013. Cases like these present a conundrum in a country where states may make their own laws governing the prohibition or recognition of unions the federal government has not legally recognized. While Maryland had no law in place expressly banning the recognition of same-sex marriages performed in other states, it also had no law allowing such recognition. Is the manifest function of divorce law to permit a couple to legally end a union that is no longer viable, or is it to act as a symbol of a state’s position on marriage and family? How can a conflict between these two functions of divorce law be resolved?

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