DOMA and Conflicts Law: Congressional Rules and Domestic Relations Conflicts Law
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Authors
Cox, Stanley E.
Issue Date
1999
Volume
32
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|Under the Defense of Marriage Act ("DOMA"), Congress authorizes states to give no effect to any judgment based on a same-sex union. This Essay argues that Congress abused its powers in enacting DOMA, and that the states would act improperly if they implemented DOMA's authorizations. DOMA is an attempted unconstitutional exercise of conflicts powers for two reasons. First, DOMA authorizes unconstitutional state applications of the public policy exception, especially and specifically in relation to judgments, but also arguably in relation to state choice of law rules. Second, DOMA assumes in Congress the power to validate or invalidate acts or judgments based on the content of the state law or judgment. This is an impermissible criterion for exercising whatever choice of law or judgment recognition powers Congress might have under the "effects" clause. The Full Faith and Credit Clause provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. The DOMA debate has significant implications for larger conflicts theory. If court challenges to DOMA arise as a result of a first state recognizing same-sex unions and a second state refusing to recognize...
Description
Citation
32 Creighton L. Rev. 1063 (1998-1999)
Publisher
Creighton University School of Law