By ARI EZRA WALDMAN
The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at the legal implications of marriage and divorce.
Marriage freedom came to Minnesota and Rhode Island last week. So too did the freedom to divorce in Colorado. Years ago, Colorado chose to enshrine marriage discrimination in its constitution and yet, its civil unions law includes provisions for the equitable division of marital property upon divorce.
This gives us the perfect opportunity to understand the legal difference between getting married and getting divorced in the context of the Supreme Court's recent decision in Windsor v. United States.
Windsor struck down only one part of DOMA: Section 3 had stated that the federal government would only recognize those marriages between one man and one woman. The case did not touch, so the Court had no reason to address, Section 2 of DOMA, which holds that states need not recognize the marriages performed in other states if those marriages conflicted with the state's public policy. Notably, this wasn't anything new. DOMA Section 2 is merely a restatement of current law; the fact that the 1996 Congress felt the need to restate it just for the sake of restating it when it came to gay marriages is a testament to the anti-gay animus that motivated that debate.
So here's the question: If DOMA Section 2 permits states to ignore out-of-state marriages between same-sex partners, how can a state recognize you as divorced if it never recognize you were married in the first place?
The short answer: Divorces are court orders, which have to be recognized across state boundaries. Marriages are not. That means that the Constitution's full faith and credit clause applies to divoces, not to marriages. So, the Constitution gives us a national right to divorce, but not a national right to marry.
I explain AFTER THE JUMP...