State interest in domiciliaries' marital status

[Strasser, Mark]

I do not believe that Williams surely stands for that proposition.
First, Williams does suggest that there are important interests of
family members at stake, which may put limits on what the states and
even Congress are permitted to do with respect to the recognition or
non-recognition of family status. Second, Williams did not involve a
case in which individuals had married in accord with the law of their
then-domicile and then later moved to the new domicile.  Third, Williams
I was basically suggesting that North Carolina could not refuse to
recognize the Nevada determination of status (notwithstanding North
Carolina's interests), although as Williams II demonstrates a separate
issue involved whether Nevada had jurisdiction to grant the divorce.
My claim is not that later-acquired domiciles cannot as a constitutional
matter refuse to recognize a marriage celebrated in a sister domicile
(although I think that a non-FFC argument can be offered to that
effect).  The Court simply has not addressed whether a new domicile has
the power to refuse to recognize a marriage validly celebrated in a
sister domicile.  But I would certainly hesitate to cite Williams as
authority for the proposition that later acquired domiciles have free
rein in this matter.

Mark Strasser
Trustees Professor of Law
Capital University Law School
303 East Broad St.
Columbus, OH 43215
Ph: (614) 236-6686
Fx: (614) 236-6956
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Wednesday, March 18, 2009 2:33 PM
To: Steve Sanders; conlawprof at lists.ucla.edu
Subject: Re: State interest in domiciliaries' marital status

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
>
>
>_____________________________________
>
>Steve Sanders
>
><http://www.mayerbrown.com/lawyers/profile.asp?hubbardid=S597744167>Att
orney, 
>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
>
>
>
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