Does Maryland's No-Fault Divorce StatuteViolate One's Free Exercise of Religion?

On March 26, 2019, the Circuit Court for Montgomery County, Maryland, permitted Ms. Cynthia Samaha (Wife) an absolute divorce from her husband, Dr. Toufic Melki (Husband), following a twelve-month separation of the two parties. Wife, a Catholic, and Husband, an Orthodox Christian, married in Lebanon in an Orthodox Christian Church in 2009, and then moved to Montgomery County. On August 4 of 2016, Wife filed for a limited divorce. Husband lost in the trial court and progressed to summary judgement, where he testified that, because the marriage inaugurated in Lebanon, only the “Lebanese courts have jurisdiction over the divorce” and thus, Maryland’s declaration of an absolute divorce between himself and Wife infringed on his free exercise of religion to practice as an Orthodox Christian. Here, it is important to note that Lebanon, as opposed to Maryland, does not allow no-fault divorces. The circuit court rejected Husband’s reasoning, allowing an absolute divorce. Shortly after, Husband requested that the court relinquish its grant of an absolute divorce and in May of 2019 the court denied his motion.

Amongst other issues raised, the fundamental issue regarding the Milki v. Milki case is whether or not the Court’s approval of an absolute divorce between Husband and Wife infringed upon Husband’s right to free exercise of religion as protected under the First Amendment. As outlined by the Husband himself, the grant of the divorce on account of a twelve-month separation “unconstitutionally force[s] him to commit a mortal sin according to his religion” (9). According to the free exercise clause, citizens can practice religion uninhibited, with the expectation that their beliefs and traditions do not violate the law.  Provided this, an individual is not relieved of the obligation to comply with neutral laws of general applicability, even if they place an incidental burden on a particular religious activity. In Employment Division v. Smith, it was declared that the protection of the First Amendment does not grant an individual the constitutional right to ignore a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)” (9). Husband’s contention that the Court expanded the technicalities of the marriage contract in its decision to allow the absolute divorce goes against court precedent. This argument is based on the Contracts Clause in Article I of the Constitution, stating that no state shall pass a law impairing obligations in a contract. However, while marriage is classified as a civil contract, under stare decisis, the Maryland Court has to follow the holding of Maynard v. Hill, where the Supreme Court affirmed that “marriage is not a contract within the meaning of the [Contracts Clause’s] prohibition” and thus, a marriage contract “is not constitutionally protected from interference” or modification by laws respecting divorces (8). Accordingly, the legislature is allowed to legislate on the subject of divorces.

I believe that the Court’s permission of an absolute divorce to Husband and Wife on the grounds of Maryland’s Family Law Article did not infringe on Husband’s free exercise of religion under the First Amendment. While it is a violation of the First Amendment for Congress to pass a law which either establishes religion or prohibits the free exercise thereof, Employment Division v. Smith confirmed that this right “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Therefore, Husband cannot say that his First Amendment right to free exercise of religion is infringed because Maryland has passed a valid and neutral law which says that a person can obtain a no-fault divorce based on a twelve-month separation. Maryland’s no-fault twelve month separation divorce law is clearly neutral and of general applicability and doesn’t require a compelling governmental interest because it does not single out one particular religious belief as compared to another nor does it selectively impose burdens on religious conduct.  See Montrose Christian Sch. Corp. v. Walsh, 363 Md. 565 (2001). 

Further, the Wife, who holds different religious beliefs than Husband, and her ability to obtain a divorce through Maryland’s Family Law Article, does not directly provoke a violation of Husband’s free exercise of religion. Despite the legal judgment determining an absolute divorce, Husband’s “constitutional prerogative to believe that in the eyes of God, [he] and [his] estranged [wife] are...wedded as one...according to [his] belief and conscience”  remains preserved under the free exercise of religion clause (11). The court cannot proscribe or prescribe religious behavior, so by forcing the wife to stay married and not grant her the divorce, they are prescribing life-long behavior hinged on religion. In fact, this would be considered a violation of the Establishment Clause, as Wife would be legally bound into marriage for the sake of the Husband’s religious responsibilities. Here, the Court would be placing preference on one of the party’s religious beliefs. If the Court rejected this grant of an absolute divorce, the court, in a sense, becomes a church because they are compelling behavior based on religious principles. This behavior is permissible when someone gets married in an Orthodox Christian ceremony, because the two parties are obligated by that particular religion to follow the principles of that religion in their marriage. Conversely, if the Court was to grant/dismiss divorces using religious framework, it is clearly violating the proscription of separation of church and state and creating excessive entanglement between the church and the state, a violation of the Establishment Clause.

Furthermore, in his discussion of the Court’s impairment of the marriage contract, Husband contends that he and his Wife had an implied promise to only pursue divorce on the grounds permitted by the Orthodox Church and thus, the Court’s decision is a violation of their obligation within the marriage contract. However, as demonstrated historically and specifically in Reynolds v. United States (a case in which the Supreme Court backed a law prohibiting polgymamy), the Supreme Court is free to enact “general laws that regulate marriage, even if the application of the law interferes with some religious practices” (10).  Because the Orthodox Church, where they got married, had set forth particular grounds for divorce, which did not include no-fault divorce, Husband argued that there was an implied obligation to not have a no-fault divorce after twelve months of seperation on behalf of the religious laws of the Orthodox Church. A neutral and generally applicable law, such as Maryland’s divorce statute, does not violate the right to the free exercise of religion when it allows a no-fault divorce even if “a spouse’s religious beliefs prohibit no-fault divorces” (10). Therefore, Maryland’s no-fault divorce statute, which granted Wife an absolute divorce on no-fault grounds, does not impinge upon neither of the Husband’s exercise of free religion of the First Amendment nor the Contracts clause of the Constitution.