Beyond interstate recognition in the Same-Sex Marriage debate

Cornell Law School Legal Studies Research Paper Series

By: Simon GJ
Published in: UC Davis Law Review, 40(2). December 2006
Via: Docuticker

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.

However, as the article's juxtaposition of the uncle-niece and same-sex marriage recognition issues highlights, same-sex marriage recognition is not simply a matter of choice of law. While the Constitution leaves states free to allow or ban uncle-niece marriage, states do not have such latitude in legislating about same-sex marriage. The article maintains that prohibitions on same-sex marriage violate the Due Process, Equal Protection, and Establishment Clauses.