Interstate Pluralism: The Role of Federalism in the Same Sex Marriage Debate

Abstract:     
This paper discusses the role of federalism in the debate over interstate recognition of same-sex marriages. It examines and rejects as simplistic the argument that the role of full faith and credit is to promote greater national uniformity. Instead, full faith and credit requires a balancing between the policy of uniformity and its counterweight, state autonomy and particularism (which is termed interstate pluralism). The paper identifies how interstate pluralism is reflected in a wide variety of ways in the law. It then seeks to show the benefits to the individual of having different legal communities to choose from. It then uses extensive economic and demographic data to demonstrate just how pluralistic are states are. It concludes that state should generally apply forum law to decide whether to recognize same-sex marriages.

Keywords: same-sex marriage, full faith and credit, federalism

Working Paper Series