State Common-Law Choice-of-Law Doctrine and Same-Sex 'Marriage': How Will States Enforce the Public Policy Exception?

Abstract:     
Growth in the number of states legalizing same-sex marriages and civil unions that increasingly mirror the rights afforded married partners has brought renewed focus on the issue of extra-territorial recognition of those relationships. The public policy exception is a primary, state-law-based impediment to the recognition of foreign marriages that do not conform to the forum state's definition of marriage. This article discusses the role of the public policy exception in rejecting recognition of foreign marriages and argues that the public policy exception has constitutional underpinnings that are rooted in principles of federalism and the protection of state sovereignty which inheres in the Tenth Amendment. State autonomy with respect to marriage recognition is so integral to a state's authority that no state can dictate the terms of that relationship for another state. The public policy exception preserves this aspect of state sovereignty.

As questions arise about the constitutionality of the Defense of Marriage Act (DOMA), it is important to note that a state's ability to invoke the public policy exception to deny recognition to a foreign same-sex marriage or civil union that violates strongly held forum policies rests on an independent federal constitutional foundation.

Number of Pages in PDF File: 16

Keywords: same-sex marriage, public policy, public policy exception, civil unions, federalism, state sovereignty, constitutional law, Defense of Marriage Act, DOMA, marriage, gay marriage

JEL Classification: K10, K30, K39

Accepted Paper Series