Choice of Law and Same-Sex Marriage
Posted: 13 Dec 2013 Last revised: 8 Sep 2014
Date Written: 1999
Choice of law arbitrates values. When a court chooses one state's law over another, it is not only determining the rule of decision, it is deciding which state's values it should adopt. How should a court make such a decision? Should it select the rule it thinks is the fairest? Should it adopt its law? Or, should it remain neutral in the choice of law process and employ the law of the jurisdiction with the closest connection to the controversy?
The treatment of same-sex marriage in a multistate setting presents an area in which to explore how choice of law should deal with state values. Because several states have recognized same-sex marriage, proponents of same-sex marriage have advocated using choice of law to extend same-sex marriage to other jurisdictions. On the other hand, opponents of same-sex marriage have vehemently opposed such efforts, and they have proposed employing the public policy exception to avoid recognizing such marriages. This Article rejects both approaches on the ground that they are not substantively neutral, and it argues that courts should determine choice of law for same-sex marriages in a non-political manner.
Part I of this Article will examine suggested solutions to conflicts of law and same-sex marriage. It will begin with the proposals of advocates of same-sex marriage, who want to employ choice of law to extend same-sex marriage to states that do not have it as a matter of substantive law. It will continue with the views of those who oppose using choice of law to force same-sex marriage on a state in which same-sex marriage is against public policy. It will also discuss recent statutes enacted to counter the possibility that some state might legalize same-sex marriage, including state statutes and the Defense of Marriage Act. Part II will examine the traditional choice of law rule for the validity of marriages, and it will argue that both the traditional rule and the public policy exception should be abandoned. Part III will present a new approach to choice of law for the validity of marriages, based on a choice of law method this author has previously developed. Finally, Part IV will discuss whether a state has to bestow the normal incidents of marriage on a same-sex marriage celebrated in another state under choice of law principles or the full faith and credit clause.
Keywords: same-sex marriage, choice of law, full faith and credit, due process
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