Interstate Recognition of Same-Sex Marriage, the Public Policy Exception, and Clear Statements of Extraterritorial Effect

Abstract:     
Since the passage of the Defense of Marriage Act, most states have enacted statutes or approved amendments to their constitutions which declare same sex marriages (SSM) illegal. Many, though not all, of these provisions also purport to forbid the recognition of SSM celebrated in other states which permit such marriages. The failure of an appreciable number of these provisions to mention SSM from other states raises issues of interpretation which have been neglected in the literature. Should these provisions be considered an expression of a state’s policy against enforcing SSM from other states, if they make no mention of foreign marriages? The case law on this question with regard to marriages in general is not clear, and this article revisits the issue in light of the fact that many of the constitutional amendments were passed by citizen initiatives, not by legislative action. Some election law scholars have argued that initiatives should be subjected to greater and more skeptical scrutiny than legislative enactments. Drawing on that literature, this article argues that the interpretation of little DOMAs should be informed by their juridical origin, against the backdrop of the long-standing practice of states leaving most choice of law issues to common law resolution by judges, not by legislative or constitutional determination.

Number of Pages in PDF File: 38

Keywords: same sex marriage, SSM, Defense of Marriage Act

JEL Classification: K10

Accepted Paper Series