The Public Policy Doctrine and Interjurisdictional Recognition of Civil Unions and Domestic Partnerships
18 Pages Posted: 26 Jun 2012 Last revised: 27 Jun 2012
Date Written: November 5, 2004
Interjurisdictional recognition of same-sex marriages and quasi-marital statuses is an issue of major legal and cultural significance. The conflict of laws issues though are fairly easy to resolve. This paper considers whether a same-sex couple from a state that does not permit same-sex marriages, civil unions, or domestic partnerships who enter into such a relationship in a state where such relationships are legal and then returns to the state where the couple resides will be able to have the relationship enforced. My conclusions can be easily summarized. First, the Full Faith and Credit Clause of the United States Constitution does not require a state to honor laws of other states that are contrary to its public policy. Second, in a conflict of laws analysis, the public policy doctrine affords states the freedom to refuse recognition of same-sex marriages, civil unions, or domestic partnerships. To the extent these quasi-marital statuses are treated as marriages, the public policy doctrine provides adequate support for the refusal to recognize these relationships if a state chooses to adopt a policy of non-recognition. To the extent these relationships are treated as contracts, public policysimilarly affords support for the refusal to recognize these relationships. Finally, a state’s exercise of the public policy exemption is not unconstitutional discrimination against the laws of a sister state.
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