These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage. At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws. This week the “Healthy Marriage Act” was introduced in the North Carolina Senate. Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together. Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together. If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”
If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract? After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage. The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract. Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry. As Justice White noted in Griswold v. Connecticut:
‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.
If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.
If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden. While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce. Perhaps the waiting period is too onerous? The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.
Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections. To receive the dissolution of the marriage, you must take two to three courses. Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it? Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant. But there is no other option to obtaining a divorce short of moving to another state and establishing residency. Otherwise, a couple is forced to remain in a marriage.
Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week. Divorce jurisprudence could pave the way for marriage jurisprudence.
 North Carolina Senate Bill 518 Section 1.a.3