The Coming Collision: Romer and State Defense of Marriage Acts
15 Pages Posted: 24 Apr 2009 Last revised: 27 Apr 2009
As same-sex marriage has passed from a hypothetical to a reality in a few U.S. states, the conflict-of-laws questions are entering a new and more subtle stage of debate. Because marriages are not judgments for purposes of the Full Faith and Credit Clause, no serious argument can be made that a same-sex marriage celebrated in a state such as Massachusetts that allows them need be recognized in a state that does not. Indeed, about 40 of the states have a "Defense of Marriage Act" (or "DOMA") that expressly forbids recognition of same-sex unions. However, some collision between these state Defense of Marriage Acts and the Supreme Court's decision in Romer v. Evans seems inevitable. Romer struck down as unconstitutional Colorado's Amendment 2 which would have prevented any state or local legislation treating homosexuality as a protected class. While it seems unlikely that Romer will be extended to fully invalidate state Defense of Marriage Acts, some application of them might potentially conflict with Romer. This seems to be especially likely where a same-sex marriage creates a right that an unmarried couple could create in some other way, such as by drafting a will.
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