Domicile and Inequality by Design: The Case of Destination Weddings
34 Pages Posted: 7 Jun 2014
Date Written: 2013
Family law has traditionally been state law, specifically the law of the state of domicile. The emphasis on the state of domicile reflects not only a key aspect of our federalism but also family law’s focus on the home. This approach expressly contemplates different legal regimes for families in different states – an inequality by design that challenges the aspiration of the symposium for which this essay was written: In Search of Equality in Family Law.
Domicile’s longstanding importance in family law, however, has been diminishing, as vividly illustrated by cases that constitutionally require a domicile to recognize same-sex destination weddings, notwithstanding clearly articulated public-policy opposition to such marriages. The first of these new marriage-recognition cases, decided by a federal judge in Ohio immediately after the Supreme Court’s ruling in United States v. Windsor, provides the opportunity for detailed analysis of the interplay between Windsor’s twin emphases, federalism and equality, as well as the implications for the traditional place of domicile in family law.
The erosion of domicile’s authority, seen in the new marriage-recognition cases, converges with other developments that reflect weakening in domicile’s familiar position. Such recent developments include reforms permitting same-sex couples to divorce where they married, if their domicile would not recognize the union (thus precluding a local dissolution), and the increasing use of the place of celebration to determine marital status for purposes of federal law.
The essay concludes with reflections about what these inroads might mean for the future of domicile and for equality in family law, the symposium’s theme. Shifting from a state to a federal reference, while evening out inequalities, might stunt local experimentation, achieving uniformity with the lowest common denominator applied to all and enhancing no one’s freedom. Thus, under one seemingly paradoxical vision, advancing the goal of equality in family law could entail retaining key features of inequality by design and then developing new ways to open access to the possibilities offered by state-by-state variation – with its promise that at least some jurisdictions will continue to enact ever more innovative, liberating, and pluralistic family laws. Under this vision, inequality by design should persist, but domicile would not determine the applicable family law. This vision, in turn, might gesture toward a more fundamental rethinking of family law and its traditional connection to home.
Keywords: Domicile, Marriage, Destination weddings, Choice of law, Jurisdiction, Marriage recognition, Marriage equality, Federalism, Inequality in family law, Equality in family law
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