A Minimalist Approach to Same-Sex Divorce: Respecting States that Permit Same-Sex Marriages and States that Refuse to Recognize Them

Unlike most modern countries, the United States has no general law of domestic relations. The powers delegated in the Constitution to the Congress do not include the governance of family law. Moreover, the Bill of Rights provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, in 1890, the US Supreme Court unequivocally stated, “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In the ensuing 120 years, Congress has, directly and indirectly, addressed multiple family law issues utilizing its various delegated powers. But it remains true that there is no federal law of marriage or divorce.

Each of the fifty states has its own marriage and divorce laws, and they are often in sharp conflict with each other. For example, until the Supreme Court ruled such laws unconstitutional in Loving v. Virginia in 1967, sixteen states still prohibited interracial couples from getting married, while thirty-four states authorized such unions.