The Retreat from Doma: The Public Policy of Same-Sex Marriage and a Theory of Congressional Power under the Full Faith and Credit Clause

Abstract

INTRODUCTION|In a 1980 case rejecting the right to same-sex marriage, the court concluded: [T]he time may come, far in the future, when contracts and arrangements between persons of the same sex who abide together will be recognized and enforced under state law . . . [b]ut in my opinion, even such a substantial change in the prevailing mores would not reach the point where such relationships would be characterized as marriages. That point was reached a mere twenty-three years later when Massachusetts highest court held that the prohibition on same-sex marriage violated due process and equal protection rights under the state Constitution. In the aftermath of the Goodridge decision, other state courts have begun to consider similar cases. While the potential impact of such a ruling has been anticipated and discussed for several years, these discussions have now moved beyond the hypothetical. With vast differences in state policies and laws, as well as federal legislation on the subject, it is only a matter of time before the same-sex marriage issue comes before the United States Supreme Court...