Academic journal article Brigham Young University Law Review

The Coming Collision: Romer and State Defense of Marriage Acts

Academic journal article Brigham Young University Law Review

The Coming Collision: Romer and State Defense of Marriage Acts

Article excerpt

I. INTRODUCTION

Andrew Koppelman's book, Same Sex, Different States: When Same-Sex Marriages Cross State Lines? drove me to the realization that interstate choice of law questions involving same-sex marriage are entering a new and more subde stage of debate.2 The easier questions, such as whether one state can effectively dictate marriage policy to the rest of the United States, are gradually sorting themselves out. But as same-sex marriages-or their conceptual twin, same-sex civil unions-become a reality in a handful of states, the harder and more subde questions of extending some incidents of marriage are increasingly likely to appear.

This Article addresses some of these questions and demonstrates that the debate regarding same-sex marriage may turn on whether the government will be compelled to extend equal protection rights to homosexuals on the basis that state defense of marriage acts potentially "impos[e] a broad and undifferentiated disability on a single named group."3 While Part II of this Article provides necessary background regarding the Full Faith and Credit Clause of the United States Constitution, Part III demonstrates the effects of federal and state defense of marriage acts. Part III also sets forth a guiding hypothetical relevant to the constitutionality of state defense of marriage acts. Part TV discusses the significant impact of recent Supreme Court precedent on defense of marriage laws. Finally, Part V posits that Supreme Court jurisprudence makes a conflict with state defense of marriage acts inevitable. Part V also demonstrates that the Supreme Court's gradual expansion of substantive constitutional rights to homosexuals is likely to continue if the Court can find a principled basis for not extending those rights to other sexual minorities.

II. FULL FAITH AND CREDIT AND SAME-SEX MARRIAGE PREDICTIONS

To begin, this Article addresses one of the easy questions: whether the Full Faith and Credit Clause would force states to recognize same-sex marriage. When same-sex marriage first emerged in the United States,4 the press and even some legal experts predicted that the Full Faith and Credit Clause would force every other state to treat same-sex couples as married as long as the couple married in a haven state.5 This was a thoroughly uninformed prediction fueled by a complete confusion of the "choice of law" and "judgment recognition" strands of full faith and credit jurisprudence.6 Of course, just because it was uninformed did not mean that it was not widely repeated.7

For the Full Faith and Credit Clause to have this effect, one must assume that the clause operates like a magician's card trick in which one card is flipped over and the rest of the deck goes with it. Behind this false "card trick" assumption lies the truth that the Full Faith and Credit Clause and its implementing statute require a state to recognize, mostly without question, another state's litigated judgments, even if the judgment is demonstrably incorrect on a legal or factual issue.8 Courts treat divorces as litigated judgments; thus, assuming the rendering court has jurisdiction, a divorce must be recognized even if granted for reasons that the recognizing state would not allow.9 By analogizing to divorces, proponents of samesex marriage argued that a state forbidding same-sex unions would not be able to refuse recognition to such a union as long as it was lawfully created in another state.10

Although there are multiple and obvious problems with this line of reasoning, this Article confines itself to just two of these problems. First, a marriage is not a litigated judgment. A marriage is unlike a divorce, or any other litigated judgment, in that there is no such thing as a "contested" marriage. Both parties have to agree in order to get married. Suppose that Pat wants to marry Jordan, but Jordan is not keen on the idea. Would the couple then head to the courthouse and appear in front of a judge who will decide whether they are to be married? …

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