Conflicts and Shifting Landscape Around Same-Sex Relationships
California Western International Law Journal, Vol. 41, pp. 93-104, 2010
12 Pages Posted: 17 May 2012
Date Written: 2010
Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships.
In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like and marriage-lite alternatives (i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) for same-sex couples complicates and requires additional nuance in our conflicts analysis. The article also suggests that different jurisdictions with different recognition regimes for these kinds of non-marriage relationships ought to resolve such conflicts differently -- even if they apply the very same conflicts methodology.
This Essay intends to complement Resolving Interstate Conflicts in two ways. First, it further explores my claim that the introduction of marriage alternative schemes adds dimensions to the conflicts analysis. Second, much more broadly, and likely more controversially, it considers whether same-sex marriage advocates should pursue conflicts-based arguments as a basis for expanding marriage recognition in states that do not currently recognize same-sex marriage. I believe the answer may be no-despite, and in part, because of my unhesitating support for same-sex marriage. In other words, I suggest that advocates for same-sex marriage should forgo some arguments that, if successful, could help them expand recognition of same-sex marriage.
Keywords: same-sex marriage, conflicts of law, defense of marriage act, gay marriage, jurisdiction
JEL Classification: K19
Suggested Citation: Suggested Citation