From Slavery to Same Sex Marriage: Comity Versus Public Policy and Inter-Jurisdictional Recognition of Controversial Domestic Relations

Abstract:     
Recognition across state and national borders of controversial forms of domestic relationships have existed throughout the history of conflict of laws, creating tension between two important principles: respect for comity and protection of valued domestic public policies. Drawing upon several examples, and particularly the history of international and intrastate recognition of slavery (a “domestic relationship”) in Anglo-American history, the article shows that despite the comity-based presumption of respect for legal status created in other jurisdictions, when strong public policies protective of domestic relations and status have been implicated, American states consistently have declined to give interstate recognition to those controversial forms of domestic relationship that are being imported. The article examines several examples of this and reviews the principles that are historically established in dealing with such conflicts, and suggests the relevance of this history and these principles for interstate recognition of same-sex marriage and other controversial contemporary domestic relationships.

Keywords: choice of law, conflict of laws, family law, same-sex marriage, adoption, slavery, comity, public policy

JEL Classifications: I28, J12, Z10

Accepted Paper Series