Social Engineering Through Civil Procedure

Is it possible that the "divorce revolution" was nothing more than an accident of American civil procedure? Probably not, but consider the following . . .

Historically, marriages were religious ceremonies to which states agreed to attach certain legal consequences. [As a matter of theology and canon law, whether or not two people were married was strictly between them and God. But since the government couldn't just go and ask God directly whether the marriage was valid (i.e., were both husband and wife freely consenting and free to marry), it had to depend on the appropriate ceremonies.] If a priest sanctified the union and the right formalities were followed, the marriage would be considered valid for all legal purposes.

Now, over the centuries, the class of people legally allowed to conduct marriages has grown. Rabbis, judges, and so on. Meanwhile, the legal preconditions of marriage, as embodied in the notion of a "marriage license," have similarly grown. But the basic idea, that legal recognition of the marriage is a purely administrative matter, not one that should take up the time of a court of law, has stuck.

Divorce, on the other hand, is a creation of the law. And as a matter of historical accident, the power to grant divorces has been lodged in the courts. Divorces (typically) reach the judge in the form of a lawsuit by one spouse against the other; the judge then issues a judgment (that's what judges do, after all) granting the divorce.

That is, divorces in this country, but not marriages are "reduced to judgment." The divorce is embodied in a more official piece of paper than any recognizing the marriage it terminates. This distinction may not seem like much, but it has Constitutional ramifications.

You see, the Constitution provides, as the first sentence of Article IV, that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The basic idea behind the Full Faith and Credit Clause is that if I sue you and win in New York and you go hide out on your Wyoming ranch, I can require a Wyoming court to enforce my judgment against you.

Now, here's the subtle part. As a matter of Constitutional interpretation and judicial doctrine, "full faith and credit" comes in at least two flavors. Judgments -- official rulings by a court with a signature and a seal -- get near-absolute faith-n-credit. There's no arguing with what a judgment says. But laws, administrative procedings, and other non-judgment procedings get something rather less than "full" faith-n-credit. As a purely pragmatic matter, allowing every state's laws to be enforced absolutely in every other state would completely destroy every last shred of state independence, becuase doing so would force each state to have the same exact laws as every other state.

What's important for present purposes is that there is a line, and that the Supreme Court has chosen to draw that line around judgments. And since divorces are judgments while marriages aren't, this means that divorces get, as a Constitutional matter, more faith-n-credit in travelling from one state to another than do marriages.

Perhaps you can see where this is going. Nevada has a history of granting both quickie marriages and quickie divorces. But while Iowa courts might be able to resist a Nevada marriage on public policy grounds; they won't be allowed to resist a Nevada divorce. Once Nevada really got going, other states had at least the option of maintaining their own, more stringent, marriage laws -- but Nevada divorce law, became de facto national divorce law.

What makes this result really incongruous is that divorces often don't fit comfortably inside the "judgment" paradigm. The idea that judgments get the fullest possible faith-n-credit comes, in large part, from the theory that judgments are the result of a spirited adversary proceeding between the two parties who care about the outcome of the lawsuit. Husband and wife go to court, have at it, and the court finds a good compromise and enters a judgment on it.

For a great many divorces, this picture is completely fictional, because the "lawsuits" involved are collusive. Husband and wife want a divorce and work out the terms and go before a judge and have their agreement recorded in a judgment. Which would be fine, except that the two of them aren't the only parties to the marriage. It seems at least plausible that the state cares about the fate of the marriage. They needed its approval to get married; they agreed to various conditions in order to win that approval.

Now, Nevada may say that it's fine with the divorce. But when the couple getting divorced are married in Iowa, live there for a decade, and return there after getting their divorce, one wonders why Iowa doesn't get a say in the matter. Especially if Iowa has a policy of making both marriages and divorces difficult to obtain, as a way of encouraging well-thought-out and lasting marriages, Nevada seems like an awful spoilsport.

Now, ideologically, I'm much closer to Nevada's position than this hypothetical Iowan one. But it still strikes me as a bit unfortunate that we've wound up with this particular ratchet, and that it operates only for divorces and not for marriages, because it creates a hydraulic pro-divorce pressure. One might see the profusion of divorce liberalization as a response to this pressure: once Nevada broke ranks, everyone else had no practical choice but to follow.

Put it this way: in the eyes of American law, a couple about to get married cannot now choose to be married in a way that will make it legally difficult for them to later split. I wouldn't want to force everyone to choose marriages that will be difficult to unwind, but if people at least had the option, I think they'd sometimes use it wisely.

As it happens, the place where the marriage-divorce asymmetry has been most significant has been for same-sex marriages. Remember the Defense of Marriage Act (DOMA), which said that states could refuse to recognize same-sex marriages? The consensus among conflict-of-laws scholars is that DOMA was legally irrelevant, because marriages aren't judgments and states could refuse to recognize them, the same way states have been free to refuse to recognize marriages between first cousins.

Ah, symbolic politics.