From Slavery to Same Sex Marriage: Comity Versus Public Policy and Inter-Jurisdictional Recognition of Controversial Domestic Relations

Brigham Young University Law Review, Vol. 2008, p. 1855, 2008

72 Pages Posted: 31 Jul 2009

See all articles by Lynn D. Wardle

Lynn D. Wardle

Brigham Young University - J. Reuben Clark Law School

Date Written: February 1, 2009

Abstract

Recognition across state and national borders of controversial forms of domestic relationships have existed throughout the history of conflict of laws, creating tension between two important principles: respect for comity and protection of valued domestic public policies. Drawing upon several examples, and particularly the history of international and intrastate recognition of slavery (a “domestic relationship”) in Anglo-American history, the article shows that despite the comity-based presumption of respect for legal status created in other jurisdictions, when strong public policies protective of domestic relations and status have been implicated, American states consistently have declined to give interstate recognition to those controversial forms of domestic relationship that are being imported. The article examines several examples of this and reviews the principles that are historically established in dealing with such conflicts, and suggests the relevance of this history and these principles for interstate recognition of same-sex marriage and other controversial contemporary domestic relationships.

Keywords: choice of law, conflict of laws, family law, same-sex marriage, adoption, slavery, comity, public policy

JEL Classification: I28, J12, Z10

Suggested Citation

Wardle, Lynn D., From Slavery to Same Sex Marriage: Comity Versus Public Policy and Inter-Jurisdictional Recognition of Controversial Domestic Relations (February 1, 2009). Brigham Young University Law Review, Vol. 2008, p. 1855, 2008, Available at SSRN: https://ssrn.com/abstract=1440329

Lynn D. Wardle (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

518 JRCB
Provo, UT 84602
United States
801-422-2617 (Phone)
801-422-0391 (Fax)

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