In 2015, the U.S. Supreme Court ruled in the case of Obergefell v. Hodges that same-sex couples have the same constitutional right to marry as do heterosexual couples. But same-sex couples also split up, and by recognizing their right to marry, the Supreme Court implicitly recognized their right to divorce. However, the wrinkles in same-sex divorces have yet to be worked out in many states.
Obergefell v. Hodges: The Right to Marry
In Obergefell, the U.S. Supreme Court ruled that the Due Process Clause of the 14th Amendment to the U.S. Constitution guarantees the right of same-sex couples to marry as one of the fundamental liberties it protects. The Court also found that the right was protected by the Equal Protection Clause of that amendment. States must now recognize same-sex marriages performed in other states. This landmark case also impacts the rights of same-sex couples to divorce.
Obergefell v. Hodges: The Right to Divorce
Same-sex couples who married before the Obergefell decision sometimes found it difficult to divorce if they moved to another state. While states that permitted same-sex marriage also allowed same-sex divorce, others often did not. If a couple married in one state and then moved to a state that did not recognize same-sex marriage, they could not legally divorce. Returning to the state in which they got married in order to divorce was complicated by the requirement in many states that a couple reside there for several months or even a year before obtaining a divorce.
Bumgardner v. Bumgardner: No Right to Divorce
In the strange Tennessee case of Bumgardner v. Bumgardner, a family law judge refused to divorce a heterosexual couple despite their mutual statements of irreconcilable differences. The judge said that the ruling in the Obergefell case negated his state's ability to accurately define divorce. "With the U.S. Supreme Court having defined what must be recognized as a marriage," he wrote, "it would appear that Tennessee's judiciary must now await a decision of the U.S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage."
Conover v. Conover: No Right to Custody After Divorce
Conover v. Conover was a same-sex divorce case in which one of the spouses was not allowed to have visitation rights with the biological child of the other. Michelle and Brittany Conover decided to have a child together. Brittany bore the child, who was conceived by artificial insemination. The couple married as soon as it became legal to do so in Maryland and parented the child together. When they split, Brittany did not want Michelle to have any access to the child, so Michelle filed a divorce case and requested visitation rights. The court denied Michelle visitation with the child because she was neither a biological parent nor an adoptive parent, and so she had no parental rights in Maryland.