Same-Sex Marriage: Refining the Conflict of Laws Analysis

Abstract

To be objective about the role of conflict of laws in the treatment of same-sex marriage, it is helpful to start with tolerance for the views of both sides in the substantive debate over whether to permit samesex marriage. I begin with this observation because much of the writing about conflict of laws issues and the recognition of same-sex marriage is far from neutral on that issue. Unless and until the Supreme Court determines that a prohibition on same-sex marriage is unconstitutional as a matter of federal law, it is within the prerogative of each individual state to determine what status to accord to same-sex couples who want to formalize their relationship and/or what rights should attach to such relationships. The view about same-sex marriage that is taken by a particular state (in the United States) or by a particular country reflects the set of values accepted in that community as determined through its own political processes, whether expressed in state constitutional amendments, statutes enacted by the legislature, or by judicial decisions declared in the courts.