Full faith and credit and same sex marriage

Conkle, Daniel O. conkle at indiana.edu
Sun Feb 22 13:53:46 PST 2004


I, too, would welcome a response to Earl's question.  In preparation for
an informal talk to a local service club last week, I did a bit of
research, which seemed to confirm Earl's view.  My research further
suggested that states, as a matter of conflict of laws, in fact
generally recognize a marriage from another state if the marriage was
valid under the law of that state, but they have refused to honor the
marriage if it is against the "strong public policy" of the forum state.
Anyway, my tentative conclusion was that from a legal point of view, the
federal DOMA provision addressing full faith and credit was an
"abundance of caution" statute for those who oppose the "portability" of
same-sex marriage. (Conversely, the various state-law DOMAs might have
more significance in defeating portability by confirming or indicating
the state's "strong public policy" against same-sex marriage.)  But I
can't claim any particular expertise on these issues, and I did not
conduct anything like exhaustive research.  So, I'll simply second
Earl's question.

Dan Conkle

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Sunday, February 22, 2004 12:50 PM
To: conlawprof at lists.ucla.edu
Subject: Full faith and credit and same sex marriage

In today's Philadelphia Inquirer, Kermit Roosevelt asserts categorically

that, in the absence of Doma, states would be constitutionally required
to 
recognize same sex marriages solemnized in states in which they were 
legal.  I've seen this argument in law review articles as well, and I 
always have the same question:  Since marriage is a contract and not a 
judgment, why aren't states generally free not to recognize such unions 
;under the rule of Allstate v. Hague?  Can anyone cite me to an S. Ct.
case 
to the contrary?


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