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
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
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?