From Slavery to Same-Sex Marriage: Comity versus Public Policy in Inter-Jurisdictional Recognition of Controversial Domestic Relations

By Wardle, Lynn D. | Brigham Young University Law Review, November 1, 2008 | Go to article overview

From Slavery to Same-Sex Marriage: Comity versus Public Policy in Inter-Jurisdictional Recognition of Controversial Domestic Relations


Wardle, Lynn D., Brigham Young University Law Review


TABLE OF CONTENTS

I. INTRODUCTION: COMITY VERSUS DOMESTIC POLICY INTEGRITY FOR FAMILY RELATIONS ............................... 1856

II. POSITIONING CURRENT DEBATES OVER THE IMPORTATION OF CONTROVERSIAL FORMS OF DOMESTIC RELATIONS WITHIN THE HISTORY OF AMERICAN CONFLICTS LAW .. 1865

A. The Bitter Controversy Over Inter-jurisdictional Recognition of Slavery .............................................. 1865

1 . The evolution of the recognition of foreign slaves in English jurisprudence ...................................... 1868

2. The evolution of the recognition of foreign slaves in American conflicts jurisprudence ..................... 1 878

B. Other Controversial Domestic Relations Issues in American Conflicts Law ........................................... 1893

1. Interstate recognition of interracial marriage ........ 1893

2. Inter-jurisdictional recognition of polygamy ......... 1896

3. Interstate marriage recognition and consanguinity restrictions .......................................................... 1898

4. Interstate recognition of teenagers' marriages ....... 1900

5. Interstate recognition of prohibited adoptions and other domestic relations ...................................... 1902

C. Prevailing Principles Used Historically for Resolving Conflicts Issues Concerning Controversial Forms of Domestic Relations .................................................. 1903

III. CONTEMPORARY INTER- JURISDICTIONAL ISSUES REGARDING GAY FAMILY RELATIONS ............................. 1906

A. Judicial Decisions Concerning Interstate Issues Regarding Same-Sex Marriages, Civil Unions, Domestic Partnerships, Adoptions and Their Incidents .................................................................. 1907

B. Positive Law Developments Concerning Interjurisdictional Gay Family Issues ................................ 1909

C. Lessons From Recent Developments Regarding Recognition of Gay Family Relations ........................ 1915

IV. CONCLUSION: THE ROLE OF CONFLICTS AND THE PRIORITY OF DOMESTIC POLICY .................................... 1919

APPENDIX A: STATE APPELLATE OR FEDERAL COURT DECISIONS INVOLVING CONFLICTS OF LAWS RE: SAMESEX DOMESTIC RELATIONSHIPS 2000-07 ....................... 1921

APPENDIX B: LEGAL STATUS OF SAME-SEX DOMESTIC RELATIONSHIPS ALLOWED IN THE UNITED STATES ....... 1923

APPENDIX C: LEGAL STATUS OF SAME-SEX DOMESTIC RELATIONSHIPS PROHIBITED IN THE UNITED STATES ... 1924

APPENDIX D: LEGAL STATUS OF SAME-SEX UNIONS IN THE WORLD .......................................................................... 1925

I. INTRODUCTION: COMITY VERSUS DOMESTIC POLICY INTEGRITY FOR FAMILY RELATIONS

The creation of new or substantially redefined family relationship forms to include same -sex couples has sparked not only passionate intra-jurisdictional controversy about those domestic public policies, but also enormous wtar-jurisdictional controversy about whether (and, if so, under what conditions and subject to what limits) such relationships should be recognized in other jurisdictions. Since federalism in family law has been the prevailing rule since the adoption of the Constitution of the United States in 1788, there have been significant differences in the family laws of the American states since the beginning of the nation.1 Thus, it is not surprising that the American states have taken at least six very different approaches regarding the controversy over whether same-gender family relationships should be legally treated as valid domestic relationships: (1) some states allow same-sex marriage; (2) some do not allow same-sex marriage but have created marriage-equivalent same-sex civil unions (sometimes called domestic partnerships) with essentially all the same legal rights and incidents as conjugal marriages; (3) some do not allow same-sex marriage or marriageequivalent same-sex unions, but have created limited status categories with (or have extended) some limited benefits and relational incidents to same-sex couples; (4) some states allow samesex marriage, and/or equivalent civil unions, and/or limited domestic unions with limited benefits, and also allow same-sex partner adoption; (5) some states do not allow same-sex marriage, equivalent civil unions, or limited same-sex unions-or-benefits, but do allow same-sex partner adoption; and (6) some states do not allow same-sex marriage, equivalent civil unions, limited domestic unions with limited benefits, or same-sex partner adoption. …

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