The Volokh Conspiracy

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Volokh Conspiracy

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.


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.