This is the first of several guest posts by Maybell Romero (Northern Illinois University College of Law) and Brian L. Frye (University of Kentucky College of Law). Many thanks to Steve Lubet for inviting us to write about our new essay, “The Right to Unmarry: A Proposal,” which we posted to SSRN on April 2. Probably a day late!
Our essay argues that the constitutional “right to marry” recognized by the Supreme Court most recently in Obergefell v. Hodges (2015) necessarily implies a “right to unmarry,” without the interference of the state. In Obergefell, the Court held that individual autonomy and mutual respect require the government to recognize a due process right to marry the person of your choice, including a person of the same sex. We argue that autonomy and respect also require the government to recognize a due process right to unmarry, as expeditiously as possible. After all, if the government cannot prevent people from marrying the person of their choice, surely it cannot force people to remain married against their will?
While the thesis of the essay is novel and potentially controversial, it has gotten attention for another reason as well. Here is the abstract:
BLF: This is a marriage proposal in the form of a law review article. In this article, I observe that Maybell Romero and I are in love. I want to marry her, and I believe she wants to marry me. At least I’ll find out pretty soon. But we cannot marry each other right now, because we are both currently married to other people.
Maybell and I want to end our existing marriages, and our respective spouses have even agreed to divorce. But the government will not allow us to marry each other until it decides to terminate our current marriages.
Maybell is unaware of this prologue to our article, describing our personal circumstances, but I’m sure she’ll see it soon. Wish me luck.
The Constitution protects the fundamental right to marry the person of your choice, so long as the choice is mutual. Any two people can agree to marry each other, and the government cannot stop them.
But the government can and does regulate the dissolution of marriages. While people can divorce, they need the government’s permission. A marriage isn’t over until the government says it is. And a person cannot remarry until their divorce is final. In other words, The government cannot prevent people from marrying each other, but it can and does force them to remain married.
We believe that people should be able to end a marriage and start a new one whenever they want. Indeed, we believe it is their constitutional right. If due process protects the right to marry based on autonomy and dignity, then it must also protect the right to unmarry on the same grounds. If it offends autonomy and dignity to prohibit a marriage, it offends autonomy and dignity to preserve a marriage, against the will of the married.
The state can legitimately regulate the allocation of property when a marriage is dissolved, just like it regulates the dissolution of any other partnership. But it cannot legitimately force people to remain married against their will or prevent them from remarrying. As always, love will out.
Thankfully, Maybell said “yes,” as memorialized in this tweet.
Since then, the article has gotten considerable attention, including a thoughtful Volokh Conspiracy post titled “The Right to Unmarry: A Proposal Within a Proposal” by Michael Abramowicz, a Family Law Prof Blog post titled “Marriage Proposal in Family Law Scholarly Article” by Margaret Ryznar, and a lovely Legal Theory Blog post titled “Frye Proposed to Romero: The Right to Unmarry: A Proposal” by Lawrence Solum.
We will expand on the thesis of the essay and respond to criticisms in future posts. Thanks for reading!
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