THE ESSENTIAL IRRELEVANCE OF THE FULL FAITH AND CREDIT CLAUSE TO THE SAME-SEX MARRIAGE DEBATE
In: Creighton Law Review, Jg. 38 (2005-02-01), S. 353
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INTRODUCTION Sometimes ideas gain momentum through repetition. The idea that the Full Faith and Credit Clause would require national recognition of a same-sex marriage solemnized by one state is apparently one of them. Some discussion of the issue appears almost once per day, on average, in the popular press. 1 While some commentary and reporting are reasonably well-informed, much of it is in the vein of the following: "states that do not have gay-marriage bans in place will likely be required to recognize same-sex married couples from Massachusetts because of the 'full faith and credit clause' in the federal Constitution, legal experts say." 2 As we shall see, this is a very dubious assertion. A large volume of legal commentary, including two efforts of my own, has already addressed this issue. 3 It is difficult to plow new ground. My modest purpose in this essay is to review some of the major points and to discuss some new judicial developments. I. THE PLACE-OF-CELEBRATION RULE Let's begin with an elementary proposition: most of conflicts law is state law. Where, for example, the tort laws of states come into conflict, it is the forum state's conflicts principles that determine which state's tort law to apply. 4 Where the contractual rules of states come into conflict, it is up to the forum state's conflicts rules to determine which state's contract law applies. 5 And where the marriage laws of states come into conflict, it is up the forum state's conflicts principles ...
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THE ESSENTIAL IRRELEVANCE OF THE FULL FAITH AND CREDIT CLAUSE TO THE SAME-SEX MARRIAGE DEBATE
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Autor/in / Beteiligte Person: | Borchers, Patrick J. |
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Zeitschrift: | Creighton Law Review, Jg. 38 (2005-02-01), S. 353 |
Veröffentlichung: | 2005 |
Medientyp: | academicJournal |
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