State interest in domiciliaries' marital status

[Steve Sanders]

In Williams v. North Carolina, Justice Douglas famously wrote, "Each state
as a sovereign has a rightful and legitimate concern in the marital status
of persons domiciled within its borders."  
 
Read in context, this observation was made in the course of reasoning toward
a decision that expanded individual liberty -- i.e., an individual's freedom
to control his marital status -- against state efforts to suppress that
liberty.  Often in recent writing on conflicts and family law, though, I
note that this quote is invoked to explain/defend a state's right to refuse
to recognize migratory same-sex marriages -- an outcome that constrains,
rather than advances, the individual liberty of the married persons involved
(that is, what I would posit as their liberty interest in remaining
married).
 
Although I know, of course, that there has been tons of writing on Williams
(and that Williams has been cited in numerous law review articles about
same-sex marriage), I'm wondering if anyone is aware of any good exegesis
that's been done specifically on the passage quoted above about state
interests and marital status.  
 
As a matter of scrupulous use of legal authority, is it fair to invoke this
passage in defense of a state's ability to refuse to recognize an extant
marriage when doing so would be against the interests of the couple
involved?  (Should it matter whether or not the marriage was evasive?)
 
Many thanks,
Steve
 
_____________________________________ 


Steve Sanders 


 <http://www.mayerbrown.com/lawyers/profile.asp?hubbardid=S597744167>
Attorney, Supreme Court and appellate litigation practice group, Mayer Brown
LLP, Chicago

Co-editor,  <http://lawprofessors.typepad.com/lgbtlaw/> Sexual Orientation
and the Law Blog

Adjunct faculty, University of Michigan Law School (Winter term 2010)

Email:  <mailto:stevesan at umich.edu> stevesan at umich.edu

Personal home page:  <http://www.stevesanders.net/> www.stevesanders.net

 

 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20090318/bff426e8/attachment.htm