Beyond Interstate Recognition in the Same-Sex Marriage Debate
Source: Cornell Law School Legal Studies Research Paper Series/UC-Davis Law Review

The national same-sex marriage debate has been dominated for the past decade by the interstate recognition issue. This article seeks to shift the focus of the debate to same-sex marriage prohibitions themselves and their incompatibility with several limitations of federal constitutional law.

After showing the legal irrelevance of the Defense of Marriage Act to the interstate recognition issue, the article addresses the proper resolution of that choice-of-law issue through the lens of a well-known New York Court of Appeals decision. In that case, despite New York’s ban on uncle-niece marriage, the New York high court – one of the most respected state supreme courts over the years in choice-of-law matters – applied Rhode Island law to uphold the validity of an uncle-niece marriage in Rhode Island between two New Yorkers. On its face, the case appears to offer powerful support for recognizing an out-of-state same-sex marriage that is valid where formed, but as the article demonstrates, the court’s choice of law is so difficult to defend that it actually militates against interstate recognition of same-sex marriage.

+ Full Paper (PDF; 335 KB)

This entry was posted on Tuesday, January 30th, 2007 at 3:09 pm and is filed under Gender and sexuality, Legal and law enforcement, Social and cultural issues. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.