Divorce and religious exemptions
Mcconnellm at LAW.UTAH.EDU
Thu Oct 28 12:13:20 PDT 1999
Eugene V. asks two questions about my divorce proposal:
First, what if a person develops religious scruples against
conforming to the original terms of the marriage agreement?
(1) I agree with Eugene that free exercise cannot trump contracts,
any more than can freedom of the press or freedom of speech. See
Cohen v. Cowles Media.
(2) The government may not be able to impose specific performance,
but it can resolve the civil issues against the party who will not
comply with the contract.
(3) In this context, I see no need to distinguish between secular and
Second, what if both parties develop such scruples, or both parties
want to get out of the marriage without complying with the original
This is a harder issue. On the analogy to contract law, I suppose
that if neither party wants to enforce a contract, there is no reason
to continue to enforce it. In this context, however, that may not be
a complete answer, because the state may have independent reasons to
decline to grant a "divorce" when the terms have not been satisfied.
(Maybe this is the issue Teresa C. and Emily H. are concerned about.)
If there are children, maybe the agreement of the two spouses is not
enough; the child could be understood to be the third party
beneficiary of the contract. I don't know about this.
-- Michael McConnell (U of Utah)
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