State interest in domiciliaries' marital status

Earl Maltz emaltz at
Wed Mar 18 11:33:16 PDT 2009

I think that the characterization of Williams as a case that 
"expanded individual liberty" is quite peculiar.  Certainly, the 
Court did not view the case in that light, but rather as a pure 
federalism case, involving only the proper interpretation of the full 
faith and credit clause.  Indeed, the case might well be seen as 
diminishing the rights of an absent spouse by allowing the entrance 
of an enforceable judgment of divorce against him in a situation 
where he did not have minimum contacts with the forum state.

Moreover, this is precisely the context in which Williams is cited in 
support of a state's authority to refuse to recognize same sex 
marriages that are performed in other states.  The rule is that a 
state may apply its own law in any case in the state has contacts 
that create interests without running afoul of the full faith and 
credit clause. Williams surely stands for the proposition that states 
have such interests in the marital status of their own domiciliaries 
for that purpose.

At 03:19 PM 3/18/2009, Steve Sanders wrote:
>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 Sanders
>Supreme Court and appellate litigation practice group, Mayer Brown LLP, Chicago
>Co-editor, <>Sexual 
>Orientation and the Law Blog
>Adjunct faculty, University of Michigan Law School (Winter term 2010)
>Email: <mailto:stevesan at>stevesan at
>Personal home page: <>
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