DIVORCE AS A FORMAL GENDER-EQUALITY RIGHT

This Article—the second half of a diptych that begins with Divorce as a Substantive Gender-Equality Right, 22 U. PA. J. CONST. L. 455 (2020)—seeks to fill in the academic void in feminist and constitutional scholarship by developing the constitutional argument for marital freedom as a gender equality right. The previous Article showed that a constitutional regime committed to substantive gender equality must provide a readily available exit from marriage to disestablish sexist relations and alleviate gender stratification. This Article continues this project by constructing a constitutional argument for marital freedom under formal equality theory. It shows that divorce-restrictive regulations were historically animated by discriminatory purposes and that fault grounds continue to be applied in ways that raise equal protection concerns. It further shows that the contemporary movement to restrict divorce repeats history: its impetus is to shore up the hierarchical family structure based on constitutionally proscribed views that subordinate women to the constraining sex-roles of the separate-spheres tradition. The Article concludes that the dictates of constitutional gender equality, however narrowly defined, require the state to provide a liberal no-fault right of exit from the status-harm of subordinating marriages. Marital freedom is thus not simply a legal remedy for broken hearts, but the linchpin of a social order committed to securing genuine gender equality and human dignity for all women.