Miscellaneous Tradition Rules

1) We will discuss only briefly the recognition of marriages under the First Restatement. The topic of the recognition of marriages – including same-sex marriages and the Defense of Marriage Act – will be dealt with in greater detail later.

2) As you can see from the reading, the rule in section 121 of the First Restatement, that “a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with,” is taken back to a great extent by section 132. But consider the converse: Two domiciliaries of Massachusetts of the same sex enter into a marriage in Virginia, which does not allow for same-sex marriages.  Would the marriage be recognized in Massachusetts?

3) Section 132 of the First Restatement states that "a marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere” when it is “a marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.” This is uncharacteristic of the First Restatement. Why?

 

4) The full text of 132 is as follows:

§ 132. Marriage Declared Void By Law Of Domicil

A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases:

(a) polygamous marriage,

(b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil,

(c) marriage between persons of different races where such marriages are at the domicil regarded as odious,

(d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.


What would be the result under section 132 of the First Restatement in the following scenario (ignore Loving v. Virginia)? X and Y, an interracial couple, are married in Illinois, which allows such marriages. X is domiciled in Mississippi, which does not allow such marriages. Y is domiciled in Iowa, which does. Will the marriage be valid in Mississippi? In Iowa? In Illinois?

 

5) A final rule in the First Restatement, not mentioned in this part of the book, is section 134: "If any effect of a marriage created by the law of one state is deemed by the courts of another state sufficiently offensive to the policy of the latter state, the latter state will refuse to give that effect to the marriage." Consider the following case: X and Y, an interracial couple, are married in Illinois, which allows such marriages. Both are domiciled in Illinois. Will they be allowed to live together if they move to Mississippi?