Same-Sex Marriage and Full Faith and Credit

1) Remember, the question at issue is the extent to which the Full Faith and Credit Clause requires a forum to recognize same-sex marriages entered into in another state, even though those marriages may not be entered into in the forum state. The question is not whether recent cases such as Lawrence v. Texas or Romer v. Evans might require every state to allow same-sex marriages to be entered into.

2) Why have marriages traditionally not been viewed as judgments? Why have divorces been viewed as judgments? What difference does this make to full faith and credit analysis? Could a marriage be transformed into a judgment though a declaratory judgment action?

3) What does it take for a state to have a public policy against same-sex marriage? Surely it takes more than the mere fact that it does not actually allow such marriages to take place domestically. States that have comparative fault do not (usually) have a public policy against contributory negligence. 

4) Is it  true that, by allowing jurisdiction for the dissolution of a same-sex civil union a state would be extending recognition to such unions?

5) Given that the public policy exception in choice of law (but not in the recognition of foriegn judgments) has been held compatible with full faith and credit, is it fair to say that the Defense of Marriage Act is superfluous? Consider Borchers's scenario:

One member of a same-sex couple, long married and a resident in Hawaii, is negligently injured by a tourist from California.  The uninjured spouse sues  the California tourist in the Hawaii state courts for loss of consortium and wins a judgment.  The California tourist does not pay, and the judgment creditor takes the Hawaii judgment to California to enforce it.  Does DOMA excuse California from enforcing the judgment?

If the DOMA actually does something here - is what it does constitutional?

7) Is Kramer right about the improper discrimination that occurred in Hughes v Fetter? Was Wisconsin discriminating against Illinois wrongful death law on the basis of its undesirability or obnoxiousness? Or was the discrimination against foreign law per se? How can Hughes render the public policy exception unconstitutional, when the court in Hughes took pains to show that Wisconsin did not have a public policy against wrongful death actions?

8) If Oklahoma may refuse to recognize same-sex marriages without violating full faith and credit, why must it recognize adoptions by same-sex couples?

9) Set aside what states must do under full faith and credit. Do you think it is likely that even states with a strong public policy against same-sex marriages will refuse to recognize all incidents of same-sex marriages, for example even devolution of property upon death?