More on the It-Takes-Two-to-Tango Principle

Can't "define and express [your] identity" as your wife's husband, when she choose to identify you as her ex-husband.

|The Volokh Conspiracy |

From the Nebraska Supreme Court earlier this month in Dycus v. Dycus, written by Justice John Freudenberg:

In her complaint, Debra alleged there had been a breakdown in the marital relationship of the parties to the extent that the marriage was irretrievably broken. She alleged that efforts by the parties at reconciliation had wholly failed and that further attempts at reconciliation would be fruitless. There are four adult children of the marriage. There are no minor children….

Michael … relies [in arguing against Nebraska's no-fault divorce law] on the Court's statements in Obergefell that the liberties protected by the Due Process Clause … include "intimate choices that define personal identity and beliefs" and "certain specific rights that allow persons, within a lawful realm, to define and express their identity." Michael asserts that he "has defined and expressed his identity as the spouse of [Debra.]" …

Michael fails to acknowledge that by bringing this action, Debra expressed her own intimate choice to identify herself as a person who is not married to Michael. There is nothing in the recent U.S. Supreme Court decisions on the "right to marry" suggesting a liberty interest in forcing a plaintiff to stay in a broken marriage because the defendant was not at "fault." Nor did the Court suggest that such compulsion would be "within a lawful realm." To the contrary, the Court in Obergefell pointed out that its holding was limited to "the rights of two consenting adults."

While the notice and opportunity to be heard must, under procedural due process, be appropriate to both the nature of the proceeding and the character of the rights that might be affected, we find no merit to Michael's argument that the liberty interests recognized in Obergefell and Windsor require something procedurally different than what is provided under the Nebraska no-fault divorce statutes….

For an earlier "it takes two to tango" case, see this post.

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  1. So the courts fended off *that* challenge. Next case: polyamory where all the parties are consenting adults.

    1. If that’s the worst you can come up with, your slippery slope needs some work. (Particularly on what’s – allegedly – a libertarian website.)

    2. I think it’s unlikely, to say the least, that SCOTUS will ever overturn an anti-polygamy law. Polygamy is illegal in all 50 states, and the Edmunds Act was enacted just 14 years after the 14th Amendment. And the practical arguments against polygamy are overwhelming.

      1. Polygamy already exists, it’s just not formally recognized, but having multiple concurrent partners is not unheard of.

        1. Polygamy does in fact exist, but it isn’t legally recognized as such in the United States. So people “just passing through” on temporary visas will find that they aren’t married while here, and permanent residents will have to make other arrangements for their long-term personal arrangement.

    3. So the courts fended off *that* challenge. Next case: polyamory where all the parties are consenting adults.”

      There’s no reason why a polyamorous group couldn’t set themselves up in a communal living situation, if they’re actually all consenting adults.

      Attaching legal status to it all would be more challenging.

      Altering all the statutes that give rights and powers to people who are married to each other to account for same-sex marriage was relatively easy, requiring a change from “husband” or “wife” to “spouse” and pretty much no other change needed.
      Altering the number of spouses from 1 to a number higher than 1 will take more work because you will have to incorporate some kind of mechanism to deal with non-unanimity of spouses, which doesn’t occur when there is only one spouse to consult.
      So, for example one of the rights that is generally granted automatically to spouses is a medical power of attorney. If poor Mr. Johnson got run over by a car and can’t make his own medical decisions, Dr. Doctor can obtain consent from Mrs. Johnson instead. But if there are two Mrs. Johnsons, and one says “yes” and one says “no”, is there consent for whatever medical procedure the doctor is considering? If there’s three Mrs. Johnsons, does a vote of the majority of the Mrs.s Johnson win? Or does it have to be unanimous, with any of them having veto power? Or can any of them give consent, with no need to consult the others?
      You’ll have to go through, and identify every statutory grant of authority to spouses, and resolve the question of non-unanimouse spouses.
      That’s a pretty significant editing job for the statute books, and probably isn’t going to come by judicial fiat.

  2. I am bemused that the courts would even consider hearing such an absurd claim, challenging such a basic concept as a no-fault divorce. I hope that he is ordered to pay the wife’s legal bills for such an frivolous claim.

    1. *ex-wife’s bills

    2. “. I hope that he is ordered to pay the wife’s legal bills for such an frivolous claim.”

      If he’s still pretending to be married, then she has access to all his bank accounts.

  3. I somehow missed the context of this.

    Was one party claiming the civil divorce wasn’t valid or merely stating that they were still married?

    If the former I see the courts points, if the latter I see a First Amendment problem – under Catholic Doctrine, Jewish Doctrine or Islamic Doctrine a civil divorce may not satisfy the religious requirements and one party stating they were still married (for religious purposes) may be protected.

    My MIL was a devout Catholic and wanted to marry my FIL. She refused recognize his civil divorce and insisted he get a Catholic Annulment prior to their marriage in a Catholic Sacrament Ceremony.

    This is one of the many reasons support the state getting out of the marriage business.

    1. I presume you mean only having religious (or some kind of non-governmental commitment) ceremonies.

      Wouldn’t keep the government out of it. What if one spouse decides to move out, the marriage is over, leave me alone …. and the other spouse refuses to leave it be? At some point government is going to get involved, for trespassing, assault, rape, murder, or who knows what.

      1. “I presume you mean only having religious (or some kind of non-governmental commitment) ceremonies.”

        FWIW, Switzerland has both — getting married there involves a proceeding in front of a bureaucrat and then a church wedding.

        1. Same in many other French-influenced countries. In fact, in the Netherlands it is (or at least was when I studied law) technically illegal for a religious minister to perform a religious wedding ceremony on a couple who weren’t legally married.

          1. Pretty sure Louisiana is now sufficiently American to have filed this sort of thing appropriately.

    2. I can see conflicting libel suits coming next — he claiming she’s his wife and she not, he claiming she took marriage vows (which is an objectively provable fact) and she claiming that the divorce made that unhappen (which is Orwellian if you think about it).

      Then she takes out a restraining order against him and this becomes a free speech issue — even without the religious aspect.

      In small-town Nebraska, he may be able to harm her reputation (and maybe scare off a few boyfriends) by reminding people she was his wife — particularly those who take the religious aspect of “until death” view of marriage.

      1. “In small-town Nebraska, he may be able to harm her reputation (and maybe scare off a few boyfriends) by reminding people she was his wife — particularly those who take the religious aspect of “until death” view of marriage.”

        Depends on how he reacts to her application for a CCW permit, and how liberally a jury considers a justification defense.

        1. You don’t shoot someone for a Farcebook post and implying you would plays into the hands of the gun grabbers.

          1. EEK! you didn’t say there’d be gun grabbers!

    3. I agree that the article was missing context. I had to re-read sections several times to puzzle it out. But, yes, it was the former scenario – the husband was trying to oppose the wife’s application for a no fault divorce by arguing that Obergefell gave him a right to “self-identify” as still married to her that somehow trumped the no-fault law.

      And, yes, we really, really need a functional loser-pays system.

      1. If they’d apply the frivolity-sanctions when people raised frivolous legal claims, there would be fewer of them.

    4. “If the former I see the courts points, if the latter I see a First Amendment problem – under Catholic Doctrine, Jewish Doctrine or Islamic Doctrine a civil divorce may not satisfy the religious requirements and one party stating they were still married (for religious purposes) may be protected.”

      What First Amendment problem? The state takes no position on what the status is of your religious marriage… and bases it’s actions solely on what your legal marriage status is. The Catholic church says you’re still married, but the courthouse records say you’re divorced. Fine, that means you can enter another marriage in the state, even if they won’t give you a church ceremony. God, in His infinite patience, can sort it out to His preferences when the matter is His. Here in the Earthly domains, though, the state can, and does, ignore what your religion says about your marital status, and what anyone else’s religion says about it doesn’t matter either.

  4. “Michael’s procedural due process argument rests primarily on the liberty interest in choice of identity discussed by the U.S. Supreme Court in Obergefell before it held that the fundamental “right to marry” is held equally by same-sex and opposite-sex couples. Michael specifically relies on the Court’s statements in Obergefell that the liberties protected by the Due Process Clause of the 14th Amendment include “intimate choices that define personal identity and beliefs” and “certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Michael asserts that he “has defined and expressed his identity as the spouse of [Debra],” which is therefore a liberty interest protected by the 14th Amendment.[emphasis added]

    He raises an interesting point — it’s an identity he’s had for 30 years, they have four adult children, and I also noticed this: “Michael McHale and Matthew F. Heffron, of Thomas More Society, for amicus curiae Donald Paul Sullins.’

    It might be interesting to see what the amicus curiae was.

  5. Wait a minute.
    If he can be a she, why can’t he be a husband?
    In every other identity case I have ever heard of, all that matters is that a person feels like a (something). DNA, science, and objective observation be damned, the law say that identity must be honored by everyone, including all the courts.

    1. Because him identifying as a she doesn’t affect anybody else, while identifying as someone’s spouse does.

      This isn’t hard.

      1. Both can fail to affect others, or affect others, depending on the extent that people are compelled to play along with the joke. Nobody would really care about guys “identifying” as girls, (And, if we’re really a “patriarchy”, why is it almost always in that direction?) if they did’t have to worry about legal consequences for continuing to treat them as a guy.

        1. Nobody would really care about guys “identifying” as girls, (And, if we’re really a “patriarchy”, why is it almost always in that direction?) if they did’t have to worry about legal consequences for continuing to treat them as a guy.

          First off, it isn’t “almost always in that direction”, but people don’t feel threatened by transmen the way they feel threatened by transwomen. Simply put, while transwomen are often subjected to harassment and violence, transmen are merely disrespected.

          Second off, this is absurd. Transgender folk have been subject to bias, harassment, violence, and so-on for far longer then there’s been any legal recognition of transgender folk. The opposition predates the legal rights.

          1. “First off, it isn’t “almost always in that direction”, but people don’t feel threatened by transmen the way they feel threatened by transwomen…”

            Exactly right. No man is going to object to sharing a prison cell with a female who identifies as a man, but women might object to sharing a prison cell with a male who identifies as a woman. Bigots!

          2. A quick search shows that it’s about two going from male to “female” for every one going from female to “male”.

            Demographic and temporal trends in transgender identities and gender confirming surgery

            1. If your probability can be represented with a six-sided dice, it’s no where close to “almost always”.

              1. As noted in the article, the 2:1 number samples mostly from trans individuals within the medical system getting GCS rather than the general population. Since trans women are less likely to get GCS than trans men (about 1.87 trans men/woman) you would expect undercounting of trans women in the 2:1 figure, making it about 3.74:1 with naive interpretations. Of course, there are other effects at play screwing up the numbers. It’s more acceptable to be a trans man than a trans woman, for a variety of reasons, which one would expect to make them less willing to identify as such to another for the purposes of a survey.

        2. Oh, and third off… no one is going to stop him from identifying as a husband. He can go around claiming that he’s married to an unspecific wife all he wants. But if he identifies as her husband, then yeah, that’s going to affect her, it’s foolish to pretend otherwise.

          1. Don’t you run into Canadian Girlfriend effect with that approach?

    2. “If he can be a she, why can’t he be a husband?”

      to be a husband, you have to have someone who wants to be married to you. I identify as a parent, and I can identify my offspring unit. Who only sometimes objects to being called an “offspring unit” (because she was raised by me).

  6. I think the general rule in these “identify as” cases should be, “Sure, “identify” as anything you want. Just keep in mind that nobody has any obligation to humor you.”

    1. Ummm — people ARE required to “humor you” — look at the increasingly draconian consequences for using the “wrong” pronoun.

      1. What draconian consequences?

        1. Fines, jail time. It’s been covered on this blog before.

      2. That’s why I said, “should be” rather than, “is”.

      3. ” look at the increasingly draconian consequences for using the ‘wrong’ pronoun.”

        Such as people correctly assessing that you are an asshole?

  7. Not as absurd as one might think, I suppose. There are some areas where progress requires that the state and other individuals adopt the self-identification of others, we’re just in the process of figuring out what those areas are.

    1. No, there are no such areas. Literally, your right to self-identify ends where other people’s choices begin.

      1. So other people are supposed to recognize your refusal to self-identify as an idiot, because that’s your choice?

        1. They can recognize it or not as they chose. The right to claim something doesn’t imply the right to have other people act as though they accepted the claim.

          1. I don’t accept your claim that you are not an idiot.

      2. “. Literally, your right to self-identify ends where other people’s choices begin”

        If you want to identify as a doctor, you need a medical license from the state before you can start treating people, and they won’t give you a prescription pad just because YOU think you know how to write scripts.

  8. I would like very much to be married to Kristen Bell. The fact that, given the choice, Ms. Bell would likely prefer to remain married to Dax Shepard does not diminish my interest. My rights are being infringed!
    (note for Ms. Bell’s attorney: I am not the crazed, stalker type of fan. No need to seek a restraining order).
    (note for Mr. Shepard: No need for you to come looking for me, either.)
    (note for Ms. Bell: You can come looking for me, if you’d like.)

    1. Yes, but if you’d taken her to the High School Prom in 1997, you’d still be free to call her your “high school girlfriend.” That’s factually accurate.

      I *think* you would be free to post your prom pictures (that you had copyright rights to) anywhere you’d like.

      1. I didn’t take anyone to the High School Prom in 1997, because in 1997 I wasn’t in high school. According to Wikipedia, Ms. Bell graduated high school in 1998.

        1. I knew kids in HS who brought non-HS students to prom. If you were a very creepy man and Bell was very stupid, you could have gone (school policy/authority disinterest willing).

          1. Just because YOU took YOUR MOM to the prom doesn’t make anyone else creepy.

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