Interest Analysis in Interjurisdictional Marriage Disputes

Abstract

Gay and lesbian couples are now entering into legally authorized marriages for the first time in our nation’s history. As has happened many times before when significant policy differences have emerged among the civil marriage laws of different jurisdictions, these newly married couples will inevitably move about the country, and state courts will have to decide whether, when, and for what purpose to give effect to their marriages when forum law would have prohibited the couples from marrying locally. The debate over this recognition problem is already fully joined. Thus far, however, that debate has most frequently been characterized by positions that are sweeping and unconditional. On one side, skeptics argue that the federal Defense of Marriage Act and the public policy exception in choice-of-law analysis together grant states the power to disregard any marriage that contravenes local law. On the other side, advocates of recognition invoke an array of constitutional arguments—based upon equality principles, vested right theories, and claims about the privileges of citizenship— to contend that states may never exercise such a discriminatory and disruptive power against the marriages of gay couples. These are the lightning and thunder of legal analysis: categorical claims of state authority met with categorical claims of constitutional invalidity. It is not surprising that a contentious issue would provoke a contentious debate, and this focus on broad questions of state power and