Same Sex Marriage, Conflicts of Law, and the Unconstitutional Public Policy Exception

Abstract

In the wake of Hawaii court decisions that may lead to the legalization of same-sex marriages in that state, there has been debate about whether other states are obligated to recognize such marriages validly performed in Hawaii. Congress stepped in to settle the issue, adopting the "Defense of Marriage Act" (DOMA), which permits a state to refuse recognition to the law or judgment of another state respecting same-sex marriage. This paper argues that DOMA was unnecessary under existing law, which permits states to ignore the law of another state if that law violates forum "public policy." The paper goes on to argue, however, that existing law is unconstitutional: the Full Faith and Credit Clause prohibits states from selectively discriminating in choice of law based on judgments about the quality of other states' policies. This reinterpretation of full faith and credit renders unconstitutional both the public policy exception and the "better law" approach to conflicts that is used in some states. It follows that states must rely on DOMA if they wish to deny recognition to Hawaii law. The paper argues, however, that DOMA, too, is unconstitutional. While the Constitution permits Congress to define the "Effect" one state's laws or judgments shall have in another state, this power was conferred to enable Congress to refine and implement the basic obligation of full faith and credit. It does not confer power to relieve states of their responsibilities under the Full Faith and Credit Clause.