Competitive Federalism and Interstate Recognition of Marriage

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Solimine, Michael E.
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INTRODUCTION|Recent proposals to recognize innovative forms of marriage (e.g., same-sex unions in Hawaii, covenant marriages in Louisiana) have generated a boom in the scholarly literature on the substantive merits of the proposals, as well as on the host of choice of law issues raised by them in a federal system. With respect to the latter issues, most of the writing employs tools of legal discourse familiar to students of conflict of laws. Under what choice of law principles can a state refuse to recognize a marriage performed or celebrated in another? To what extent do the Full Faith and Credit Clause and Act bear on that question? Is a marriage a public record, a judgment, or both? Is the Defense of Marriage Act ("DOMA") constitutional? How should it and its state counterparts be interpreted? And so forth. |I will address these questions from a somewhat different angle, from the perspective of economic and social science theory. My initial premise is to assume that these admittedly contested legal issues have been resolved in favor of state authority. That is, I will assume that there are no federal constitutional or statutory barriers to states taking any position with respect to recognizing the validity of a marriage performed in another state. Instead, I will in the main focus descriptively on how state courts and legislatures have approached recognition of sister-state marriages, and attempt to explain and evaluate those patterns with insights from the social sciences. While I will not pursue what states should be doing on this issue (from moral or other perspectives), or consider the legal issues listed above, some of my discussion might inform development of those issues....
32 Creighton L. Rev. 83 (1998-1999)
Creighton University School of Law
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