The right NOT to associate is protected by the First Amendment. Divorce is nothing more than choosing NOT to associate any further.

Do I Have a Right to Divorce?

If marriage is an intimate and expressive close family association protected by the First Amendment, then the First Amendment protected right NOT to Associate is a core element of the right. It is undeniable that the Right to Associate also contains the Right NOT to Associate. The government can no more compel you to remain in an association than it can compel you to enter an association. If the State cannot compel you to marry, it cannot prohibit you from divorcing. Nor may the State punish your protected privacy choice to divorce.

It is axiomatic that the government cannot create a right to regulate or punish constitutionally protected choices simply because the government conveys a privilege to people who make the choice that the government prefers. Constitutional rights set minimum conditions that precludes state action. The State may not take away nor regulate protected rights. However, the government may convey additional rights or privileges that exceed constitutional minimums and regulate those rights and privileges, provided they comply with federal rules of due process in that regulation.

What this means in practical terms is that your State may regulate the government “status” of marriage but NOT the religious or private expression of being married. The State cannot prohibit you from claiming to be married except where that claim is used to receive a state benefit associated with the government status. The same applies to the Right NOT to Associate or to Divorce.

You have a First Amendment protected right to divorce that neither your spouse nor the State may prevent nor punish under law. The right to associate is an individual right, meaning that it takes an agreement between two people to establish an association and where one of those individuals chooses not to enter into the association or to dissolve the association, nothing and nobody may prevent it. When you declare that you are divorced and commit to that declaration, you are divorced and the government has zero power to hold otherwise.

What remains then is the government status under which you are recognized as being married. The status carrying the benefits that same sex couples fought to receive in Obergefell. When you ask a court to grant you a divorce, you are quite literally asking the court to change your marital status on the legal registers from married to unmarried. Because that status conveys rights to both parties in a manner that gives them significant legal control over the other party, the refusal of the State to change that status would be a punishment on your right to dissolve the marital association under the First Amendment. This is the true reason why all 50 states have no-fault divorce.