Beyond Interstate Recognition in the Same-Sex Marriage Debate

72 Pages Posted: 30 May 2006

See all articles by Gary J. Simson

Gary J. Simson

Cornell University - Law School; Mercer University - Walter F. George School of Law

Abstract

The national same-sex marriage debate has been dominated for the past decade by the interstate recognition issue. This article seeks to shift the focus of the debate to same-sex marriage prohibitions themselves and their incompatibility with several limitations of federal constitutional law.

After showing the legal irrelevance of the Defense of Marriage Act to the interstate recognition issue, the article addresses the proper resolution of that choice-of-law issue through the lens of a well-known New York Court of Appeals decision. In that case, despite New York's ban on uncle-niece marriage, the New York high court - one of the most respected state supreme courts over the years in choice-of-law matters - applied Rhode Island law to uphold the validity of an uncle-niece marriage in Rhode Island between two New Yorkers. On its face, the case appears to offer powerful support for recognizing an out-of-state same-sex marriage that is valid where formed, but as the article demonstrates, the court's choice of law is so difficult to defend that it actually militates against interstate recognition of same-sex marriage.

However, as the article's juxtaposition of the uncle-niece and same-sex marriage recognition issues highlights, same-sex marriage recognition is not simply a matter of choice of law. While the Constitution leaves states free to allow or ban uncle-niece marriage, states do not have such latitude in legislating about same-sex marriage. The article maintains that prohibitions on same-sex marriage violate the Due Process, Equal Protection, and Establishment Clauses.

Suggested Citation

Simson, Gary J. and Simson, Gary J., Beyond Interstate Recognition in the Same-Sex Marriage Debate. UC Davis Law Review, Vol. 40, No. 2, December 2006, Case Legal Studies Research Paper No. 06-12, Cornell Legal Studies Research Paper No. 06-015, Available at SSRN: https://ssrn.com/abstract=905249

Gary J. Simson (Contact Author)

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Avenue
Macon, GA 31207
United States
478-301-2628 (Phone)

Cornell University - Law School

Myron Taylor Hall
Cornell University
Ithaca, NY 14853
United States

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