The Federal Constitutional Right to Divorce
![handle is hein.journals/contli14 and id is 133 raw text is: The Federal Constitutional Right
to Divorce
Tom Bosworth (Spring 1997)
As early as 1888 the Supreme Court characterized marriage as the
most important relation in life, without which there would be neither
civilization nor progress.' The Court's recognition of marriage as a
fundamental characteristic of the American way of life has led it to
assign constitutional significance to the right to marry.2 But what about
the decision to get a divorce, which dissolves rather than facilitates the
marital relationship? Is there a federal constitutional right to get a
divorce?
In Boddie v. Connecticut,3 the Supreme Court indicated that the decision
to get a divorce has constitutional dimensions. Connecticut welfare
recipients, unable to commence divorce proceedings because they could
not afford the costs and fees required by state law,. claimed that this
denial of access to Connecticut's courts violated their constitutional
rights. In an opinion by Justice Harlan, the Court concluded that due
process of law prohibit[s] a state from denying, solely because of
inability to pay, access to its courts to individuals who seek judicial
dissolution of their marriages,4 because the State's refusal to admit
these appellants to its courts, the sole means ... for establishing a
divorce, must be regarded as the equivalent of denying them an
opportunity to be heard upon their claimed right to a dissolution of the
1. Maynard v. Hill, 125 U.S. 190, 205, 211 (1888). Later, in Skinner v.
Oklahoma, 316 U.S. 535, 541 (1942), the Court described marriage as fundamental to
the very existence and survival of the race.
2. In Meyer v. Nebraska, 262 U.S. 390, 399 (1923), for example, the Court
recognized that the liberty protected by the Due Process Clause includes the right of the
individual.., to marry. More recent Supreme Court decisions have reaffirmed that the
right to marry is protected by the Fourteenth Amendment's Due Process Clause. See,
e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (Our past decisions make clear that
the right to marry is of fundamental importance); Loving v. Virginia, 388 U.S. 1, 12
(1967) (The freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men).
3. Boddie v. Connecticut, 401 U.S. 371 (1971).
4. Id. at 376.](ViewImageLocal?handle=hein.journals/contli14&div=22&collection=&method=preview&ext=.png&size=3)
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The Federal Constitutional Right to Divorce
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