*This post originally appeared on Public Justice’s blog
A Florida judge’s ruling that the state’s constitutional amendment banning same-sex marriage is unconstitutional under the U.S. Constitution is the third order of its kind to come out in less than a month. But in a twist on the debate over the right to marry, the judge’s order came about not to allow a couple to marry, but to allow a woman to divorce her estranged spouse. And the issue is about far more than the right to divorce, it’s also about access to justice.
In 2002, Heather Brassner entered a civil union with Megan Lane under Vermont’s civil union statute. Four years ago, the couple separated and Brassner is now in a committed relationship and wants to end her civil union. Although. Brassner sought a dissolution of her civil union in Vermont, because she is not a Vermont resident, Vermont courts won’t dissolve the union without Lane’s approval and Lane has gone missing.
So Brassner sought relief in Broward County, Fla., the place she’s lived for the past 14 years.
In 2008, Florida voters passed a constitutional amendment that bans same-sex marriage in the state. The amendment not only bans marriage, but is written so broadly that it includes civil unions. The amendment says:
Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.
Unlike the right to marry, I know of no U.S. Supreme Court opinion recognizing a person’s right to divorce as part of an individual’s right to liberty and privacy. In fact, the Florida court that decided Brassner’s case based its decision on a federally protected right to marry, not any federally protected right to divorce.