Religion and the Law

Maryland Residents' Divorce Governed by Maryland Law—Not Lebanese Law, or Religious Law

|The Volokh Conspiracy |

From Melki v. Melki (Md. Ct. Spec. App.), decided Tuesday, in an opinion by Judge Kevin Arthur:

In 2009, Husband and Wife were married in Tripoli, Lebanon, at an Orthodox Christian church. Husband is an Orthodox Christian, and Wife is a Catholic. The couple had met a year earlier in Beirut, where Wife, a citizen of Lebanon, worked as an opera singer. Husband, a dual citizen of Lebanon and the United States, has resided in the United States for over 30 years, but often travels to Lebanon to vacation and visit family members….

On August 4, 2016, Wife moved herself and her children out of the couple's home in Montgomery County. On that same day, Wife filed for a limited divorce in the Circuit Court for Montgomery County….

Husband objected to the divorce, "arguing that only Lebanese courts have jurisdiction over the divorce and that the court's dissolution of the marriage would infringe on his free exercise of religion as an Orthodox Christian," and "that Maryland's no-fault divorce statute, as applied to him, violated his constitutional right to marry; that the divorce would infringe on his children's fundamental rights; and that the dissolution of his marriage would impair the obligations under his marriage contract, in violation of the Contracts Clause of the United States Constitution."

No dice, said the court to Husband:

[1.] When a spouse is domiciled in Maryland, Maryland law applies to the divorce. (Note that the initial validity of a marriage is often determined based on where the marriage took place, but not the rules for dissolving the marriage.) "For example, some states (such as Louisiana) permit couples to enter into 'covenant marriages,' in which they agree to forgo no-fault grounds for a divorce. Yet, if one or both of those spouses should become a domiciliary of a state that permits no-fault divorces, that state will apply its own substantive law and will permit a no-fault divorce. Blackburn v. Blackburn (Ala. Civ. App. 2015)."

[2.] The Contracts Clause, which bars states from impairing the obligation of contracts, doesn't apply to marriages. "Although marriage is a civil contract for some purposes (see Section C, below), the Supreme Court has said that 'marriage is not a contract within the meaning of the [Contracts Clause's] prohibition' and that the clause 'never has been understood to restrict the general right of the legislature to legislate on the subject of divorces.' Maynard v. Hill (1888)."

[3.] The no-fault divorce doesn't violate Husband's Free Exercise Clause rights. "Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse's religious beliefs prohibit no-fault divorces."

The [no-fault divorce] statute does not infringe Husband's religious rights merely because it allows Wife, who does not share his beliefs, to obtain a divorce. Husband "still has [his] constitutional prerogative to believe that in the eyes of God, [he] and [his] estranged [wife] are ecclesiastically wedded as one, and may continue to exercise that freedom of religion according to [his] belief and conscience." In fact, it might well violate the Establishment Clause of the First Amendment to compel Wife to remain married to Husband because of Husband's religious beliefs, for the court would then be preferring one spouse's beliefs over the other spouse's.

[4.] The court doesn't seem to discuss Husband's argument that the no-fault divorce "violated his constitutional right to marry," but I expect that, if it did, it would have applied the "it takes two to tango" principle (though it only takes one to stop tangoing).


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  1. “The court doesn’t seem to discuss Husband’s argument that the no-fault divorce ‘violated his constitutional right to marry,’ but I expect that, if it did, it would have applied the “it takes two to tango” principle (though it only takes one to stop tangoing).”

    Well played!

    1. Glad you liked it!

      1. Noli me tangere

  2. Government divorce bas no more religious significance than government marriage. This is something the religious who want to stop gay (government-recognized) marriage forget.

    If any of this is wrong, they’re the ones risking god’s wrath, as in this case. They’re just dissolving the legal entanglement. You’re still a sinner!

  3. “Because a trial court granting a divorce merely dissolves a civil contract between the spouses, ….

    How can this be ? It was only a couple of threads ago that Justice Sarcastro was blowing off, with prejudice, the mere notion that marriage was a contract.

    1. I didn’t see Sarcastr0’s specific argument; but, though, marriage is a form of civil contract, it is also treated differently from other civil contracts.

      1. …which should have been obvious to anyone reading the post given your section [2] immediately prior and the reference to Maynard v. Hill.

  4. “Because a trial court granting a divorce merely dissolves a civil contract between the spouses”

    This is the heart of the matter. Marriage, as it refers to the state, is a civil contract.

  5. The court doesn’t seem to discuss Husband’s argument that the no-fault divorce “violated his constitutional right to marry,” but I expect that, if it did, it would have applied the “it takes two to tango” principle (though it only takes one to stop tangoing).

    The right to marry is absolute. There is no standard for reviewing the right to marry because the right is fundamental. The Supreme Court has held that any “balancing tests” do not apply to fundamental rights:

    fundamental rights may not be submitted to a vote; they depend on the outcome of no elections

    That assumes, of course, that you take the Supreme Court at it’s word that certain rights are fundamental and stare decisis is a thing.

    Others recognize that the Supreme Court is no more than nine DC elites forming an independent government reigning over the various Federal and State governments.

    1. Jubulent:

      1. The Supreme Court has held that fundamental rights are sometimes subject to restrictions (see, e,g., Holder v. Humanitarian Law Project; Williams-Yulee v. State Bar; and many more cases). As is true in many areas of life, in law broad general statements in some cases are often qualified by exceptions and limitations mentioned in other cases.

      (For another example, see the line from Police Dep’t of Chicago v. Mosley (1972), “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Yet of course the Court has long recognized certain content-based exceptions, such as for libel, fighting words, true threats, and the like.)

      2. Beyond that, rights (including the right to marry) have certain definitional limitations that aren’t captured in the three-word label. You have a right to marry — in the sense of having a legally recognized marriage — but not the right to marry your sister, or a 6-year-old, or several people at the same time. Likewise, the right to marry doesn’t include the right to have your marriage continue after your spouse decides she doesn’t want it to continue.

      1. I’ve long believed the government should get out of marriage completely and let the parties figure it out for themselves.

        Remove marriage from the tax code, stop keeping records and stop regulating it at all. Underage marriage, can be dealt with by current laws against underage sex. Incest can be dealt with by current incest laws. if 2 ,3 5 or 9 people want to live together as a family let them.

        1. rsteinmetz: I appreciate the argument, but let me ask about a couple of wrinkles:

          (1) U.S. immigration law makes it much easier for spouses of U.S. citizens to come to the U.S. legally, and to become citizens. What, if anything, would you replace that with?

          (2) Evidence law generally lets spouses refuse to testify against one another (about pretty much anything), and generally lets spouses block the other spouse from testifying about confidential communications said within the marriage. What, if anything, would you replace that with?

          1. Just because the state does not recognize marriage does not mean if will be abolished and that people won’t continue to get married.

            Immigration law as well as many others would need to be adjusted. I favor loosening the existing restrictions making it easier for people to immigrate. I can imagine favoring relatives, as the law currently does, it could include special provisions for parents of a child, regardless of marital status or recognizing close relationships which could include marital status for people who chose religious or other forms of marriage available to them.

            With regard to the spousal privilege, I’d be OK with letting it go. I’m not sure how it’s applied to the large number of people who live together but aren’t legally married. I’ve also have wondered how often it’s used to shield criminal activity or accountability.

  6. If marriage is not a contract, what does this do to prenups?

    Couldn’t a couple agree to waive “no fault” status?

    1. “Couldn’t a couple agree to waive “no fault” status?”

      This is literally addressed in the post.

    2. Dr. Ed 2: 1. A prenup is a contract, and many terms in prenups can be enforceable, subject to state law rules. But that’s because the prenup is a contract, not because a marriage is a contract.

      2. Some states have laws that allow for marriages that aren’t subject to easy no-fault divorce — that’s the “covenant marriage” that the opinion mentions. But most states let couples get divorced regardless of what promises they made, either at the ceremony (“till death do us part”) or in an accompanying waiver. State law is always free to make waivers of various rights unenforceable, whether it’s a waiver of a right to sue for professional negligence or a waiver a right to divorce. (The Contracts Clause may limit the retroactive invalidation of such waivers, but as the opinion notes it doesn’t apply to marriage contracts.)

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