The Right to Unmarry: A Proposal Within a Proposal

Brian Frye and Maybell Romero's new essay on The Right to Unmarry has a most unusual 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.

On the merits, my immediate objection was that divorce requires tying up loose ends. But they offer an answer to this:

[D]ivorce disputes are not about marital status, but about the distribution of property, the custody of children, and other contentious issues. None of these are implicated by the right to unmarry. Courts can and must resolve these difficult questions over a period of time, in consultation with the parties. But there is no reason or need for the marriage itself to persist, in order to address them.

So the right of which the authors speak is not the right to unmarry so much as the right to unmarry immediately. My remaining objection then is that it is not clear to me that the right to marry entails the right to marry immediately or even quickly. Anthony Kronman has noted "the statutory rule (found in many states) that a couple may not marry until a stated period of time has passed until the issuance of their license and that, once married, they may not obtain a divorce decree before the end of a similar cooling-off period." Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763, 788 (1983). To be sure, the cooling-off period for marriage is generally much shorter than the time it takes to complete a divorce. One possible explanation is that states do not wish to discourage shotgun weddings when a woman is pregnant.

One could imagine a longer cooling-off period for marriage, at least when pregnancy is not involved. Would it be so terrible if states required a couple to take a trip together before getting married (if possible within their means), or to answer jointly a questionnaire about how they might deal with some difficult questions, especially as to children, or to attest multiple times over a three-month period that they really do want to get married? My purpose here is not to advocate that states require more deliberation before marriage, but the idea does not seem crazy to me, and if that's so, it's also not clear to me that cooling-off periods for divorce are problematic.

But Frye and Romero should be applauded for pointed out the asymmetry in current policy. I wish them (as well as their current spouses) best of luck in their endeavors, personal and professional.