Involuntary Imports: Williams, Lutwak, the Defense of Marriage Act, Federalism, and 'Thick' and 'Thin' Conceptions of Marriage

58 Pages Posted: 14 May 2013

See all articles by Lynn D. Wardle

Lynn D. Wardle

Brigham Young University - J. Reuben Clark Law School

Date Written: May 13, 2012

Abstract

Profound conflicts may arise when a person enters into a same-sex marriage in one jurisdiction where such marriages are permitted and then attempts to import that marital status into another jurisdiction where same-sex marriage is not permitted. The Supreme Court, in North Carolina v. Williams I and II, established the standard for interstate (horizontal) recognition of marital status. In Lutwak v. United States the court set out the standards for vertical recognition of marital status (federal-state and federal-international). Both of these principles are codified in DOMA.

There are compelling justifications to protect the traditional “thick” concept of marriage as a gender integrating institution rich with meaning and responsibility. Likewise, there are justifications for rejecting the new “thin” conception of marriage with its diminished requirements, duties, and more subjective content. Courts should resist letting political movements distort sound judicial analysis. Prudence on the part of the same-sex movement, including efforts to accomplish its goal legislatively rather than through the courts, may increase the value and longevity of this social movement’s contribution to the development of the law.

Keywords: Williams, Lutwak, jurisdiction, import, federalism, thick, thin, marriage, same-sex marriage, DOMA, Defense of Marriage Act

Suggested Citation

Wardle, Lynn D., Involuntary Imports: Williams, Lutwak, the Defense of Marriage Act, Federalism, and 'Thick' and 'Thin' Conceptions of Marriage (May 13, 2012). Fordham Law Review, Vol. 81, 771-828 (2012), Available at SSRN: https://ssrn.com/abstract=2264582

Lynn D. Wardle (Contact Author)

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

518 JRCB
Provo, UT 84602
United States
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