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Symposium Article


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 states, these married couples will inevitably move about the country, and state courts will have to decide whether and for what purpose to give effect to their marriages when forum law would have prohibited them 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 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 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. Many of the disputes that state courts will confront when married gay couples move and travel around the country will not be resolved by the heat and noise of this debate. Until the Supreme Court of the United States is prepared to place its institutional capital behind a principle of fully equal treatment for gay and lesbian couples, those couples must be prepared to engage courts in a discussion about what is sensible and advisable, not merely what is mandatory or prohibited. Among the most important elements in that discussion will be an examination of the range of interests that a state may rely upon in considering whether to give effect to a gay couple's marriage. That examination does require some attention to recent constitutional developments. While the Court has avoided any statement about the constitutional right of gay couples to marry in its recent decisions, it has nonetheless established principles that inform the range of interests that a state may legitimately assert as a basis for applying hostile forum law to the validly celebrated marriage of a couple from another state. In this Article, written for a symposium at the University of Pennsylvania Law School, I canvas a broad array of interjurisdictional marriage disputes and examine the interests that state courts have relied upon in discussing whether to give effect to a marriage that runs contrary to local law. I then examine the constitutional status of each of these rationales, as applied to a married gay couple, in the wake of the Supreme Court's decisions in Lawrence v. Texas, Romer v. Evans and Saenz v. Roe. I also discuss the statutes and constitutional provisions that a majority of states have now enacted to ban marriage by same-sex couples. Many of these mini Defense of Marriage Acts have used broad language to declare that marriages between gay couples are void. Such provisions are not unprecedented, and their relevance for interjurisdictional disputes is not always clear. In previous marriage controversies, courts have often required that a legislature make a clear and unmistakable statement of its intent to apply such provisions to good-faith marriages performed out of state, even in the face of broad language declaring such marriages absolutely void when performed locally. I examine the desirability of such a clear-statement rule here. Finally, I place these conflicts issues in a larger context by discussing the particular mode of subordination that often characterizes discrimination against gay people: the fantasy that they will cease to exist if the law denies them any form of official recognition or status. The proper way to frame the analysis in a recognition dispute, I argue, is to inquire into the most sensible way to treat the married gay and lesbian couples who will inevitably live within a jurisdiction, not to perpetuate an unreal discussion about whether it is desirable for those couples to exist at all.


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