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Saint Louis University Public Law Review

Abstract

With the start of same-sex marriage in New York, fifteen U.S. states and the nation’s capital now celebrate a form of homosexual union, whether marriage, civil union or domestic partnership. Litigants and scholars—both in favor of and opposed to these legal statuses—have routinely claimed that in the absence of state-level Defense of Marriage Acts, these relationships must be recognized by other states for the full range of purposes including adoption, health and welfare benefits, taxes, and alimony, unless those states have a public policy to the contrary. They claim this consequence follows because of the long-standing American legal rule that “a marriage valid where celebrated is valid everywhere.” This article challenges this conventional account by arguing that this “place of celebration” rule—though the law—only tells half the story. That rule does require that a state recognize an out of state same-sex marriage or civil-union as valid, but it does not answer whether a litigant may claim the various rights and privileges that a forum state confers in connection with its own marriages, unions, or partnerships. Same-sex legal relationships are new, but state-by-state variation in emoluments that flow from the institution of marriage are not. Ever since the conflict of laws revolution, most state courts have used modern choice of law rules to adjudicate claims to the incidents stemming from interstate variation in traditional marriage. Bringing this analysis to bear on the same-sex jurisprudence reveals that, if precedents are applied faithfully, the practical reach of same-sex legal relationships throughout the fifty states will be more measured than proponents hope and than opponents fear.

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