Academic journal article The Yale Law Journal

Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception

Academic journal article The Yale Law Journal

Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception

Article excerpt

It finally happened. On Tuesday, December 3, 1996, a Honolulu judge struck down a Hawaiian law permitting only opposite-sex couples to marry, and Hawaii became the first state to recognize same-sex marriages.(1) Of course, the ruling hardly came as a surprise. The surprise had come three years earlier, when the Hawaii Supreme Court ruled in Baehr v. Lewin(2) that a restriction on same-sex marriage constituted sex discrimination under the state constitution and remanded to give the state an opportunity to show that its law served a compelling interest. Still, the trial court's finding that it did not brings a further degree of closure to one chapter in the same-sex marriage controversy: We can confidently predict that Hawaii will recognize same-sex marriages, for while the trial court stayed its mandate pending appeal, it is very unlikely that the decision will be overturned.

Now that a state has made same-sex marriages legal, the battleground for gay and lesbian couples shifts to other states -- eventually, perhaps, to persuade these states to follow Hawaii's lead; in the meantime, to get them to recognize the validity of same-sex marriages performed in Hawaii. But opponents of legally recognized marriages between same-sex partners have not been quiescent. On the contrary, horrified by the prospect that gay and lesbian couples might be able to marry in Hawaii and force other states to recognize their union fully and for all purposes, adversaries of same-sex marriage began a campaign to limit the effect of Hawaiian law almost as soon as Baehr was decided. Efforts were made to persuade state legislatures to adopt statutes explicitly declaring that same-sex marriages violate public policy and are void. These efforts succeeded in a number of states.(3)

The popular media raised questions about whether such laws were permissible or whether states would be required as a matter of full faith and credit to recognize marriages celebrated lawfully in Hawaii.(4) So opponents of gay and lesbian marriage went to Congress. They found a receptive audience, and Congress soon enacted the ironically named "Defense of Marriage Act" (DOMA), which permits states to refuse recognition to "any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State."(5)

As same-sex couples begin making plans to get married in Hawaii, and as other states begin gearing up to deny their marriages any effect, some important questions arise. First, assuming that states are not required to permit same-sex marriage under their own laws, to what extent does the federal Constitution obligate them nevertheless to recognize such marriages if validly performed in Hawaii? Second, assuming that states sometimes are obligated to recognize Hawaiian marriages, can Congress relieve them of the obligation? As we will see, both questions are more complicated than partisans on either side of the issue seem to have realized.

Part I of this Article describes existing law. The traditional, and still usual, rule for interstate marriages is to uphold the validity of a marriage valid where it was celebrated. This "place of celebration" rule is then subject to a number of exceptions, most of which are narrowly construed. The vast majority of cases in which an exception is made are based on "public policy," among the hoariest of hoary conflicts doctrines. The availability of this exception appears to make DOMA unnecessary by making potential same-sex marriage problems easy from a conflict-of-laws perspective.

That is true, however, only if one accepts the law that allows states to make this exception. Part II, the heart of the Article, argues that the public policy doctrine ought to be deemed unconstitutional -- not just in same-sex marriage cases, mind you, but across the board.(6) The argument, in a nutshell, is that the Full Faith and Credit Clause prohibits states from selectively discriminating in choice of law based on judgments about the desirability or obnoxiousness of other states' policies. …

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