From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-jurisdictional Recognition of Controversial Domestic relations

TABLE OF CONTENTS I. INTRODUCTION: COMITY VERSUS DOMESTIC POLICY INTEGRITY FOR FAMILY RELATIONS 1856 II. POSITIONING CURRENT DEBATES OVER THE IMPORTATION OF CONTROVERSIAL FORMS OF DOMESTIC RELATIONS WITHIN THE HISTORY OF AMERICAN CONFLICTS LAW .. 1865 A. The Bitter Controversy Over Inter-jurisdictional Recognition of Slavery 1865 1 . The evolution of the recognition of foreign slaves in English jurisprudence 1868 2. The evolution of the recognition of foreign slaves in American conflicts jurisprudence 1 878 B. Other Controversial Domestic Relations Issues in American Conflicts Law 1893 1. Interstate recognition of interracial marriage ........ 1893 2. Inter-jurisdictional recognition of polygamy ......... 1896 3. Interstate marriage recognition and consanguinity restrictions 1898 4. Interstate recognition of teenagers' marriages ....... 1900 5. Interstate recognition of prohibited adoptions and other domestic relations 1902 C. Prevailing Principles Used Historically for Resolving Conflicts Issues Concerning Controversial Forms of Domestic Relations 1903 III. CONTEMPORARY INTER- JURISDICTIONAL ISSUES REGARDING GAY FAMILY RELATIONS 1906 A. Judicial Decisions Concerning Interstate Issues Regarding Same-Sex Marriages, Civil Unions, Domestic Partnerships, Adoptions and Their Incidents 1907 B. Positive Law Developments Concerning Interjurisdictional Gay Family Issues 1909 C. Lessons From Recent Developments Regarding Recognition of Gay Family Relations 1915 IV. CONCLUSION: THE ROLE OF CONFLICTS AND THE PRIORITY OF DOMESTIC POLICY 1919 APPENDIX A: STATE APPELLATE OR FEDERAL COURT DECISIONS INVOLVING CONFLICTS OF LAWS RE: SAMESEX DOMESTIC RELATIONSHIPS 2000-07 1921 APPENDIX B: LEGAL STATUS OF SAME-SEX DOMESTIC RELATIONSHIPS ALLOWED IN THE UNITED STATES ....... 1923 APPENDIX C: LEGAL STATUS OF SAME-SEX DOMESTIC RELATIONSHIPS PROHIBITED IN THE UNITED STATES ... 1924 APPENDIX D: LEGAL STATUS OF SAME-SEX UNIONS IN THE WORLD 1925 I. INTRODUCTION: COMITY VERSUS DOMESTIC POLICY INTEGRITY FOR FAMILY RELATIONS The creation of new or substantially redefined family relationship forms to include same -sex couples has sparked not only passionate intra-jurisdictional controversy about those domestic public policies, but also enormous wtar-jurisdictional controversy about whether (and, if so, under what conditions and subject to what limits) such relationships should be recognized in other jurisdictions. Since federalism in family law has been the prevailing rule since the adoption of the Constitution of the United States in 1788, there have been significant differences in the family laws of the American states since the beginning of the nation.1 Thus, it is not surprising that the American states have taken at least six very different approaches regarding the controversy over whether same-gender family relationships should be legally treated as valid domestic relationships: (1) some states allow same-sex marriage; (2) some do not allow same-sex marriage but have created marriage-equivalent same-sex civil unions (sometimes called domestic partnerships) with essentially all the same legal rights and incidents as conjugal marriages; (3) some do not allow same-sex marriage or marriageequivalent same-sex unions, but have created limited status categories with (or have extended) some limited benefits and relational incidents to same-sex couples; (4) some states allow samesex marriage, and/or equivalent civil unions, and/or limited domestic unions with limited benefits, and also allow same-sex partner adoption; (5) some states do not allow same-sex marriage, equivalent civil unions, or limited same-sex unions-or-benefits, but do allow same-sex partner adoption; and (6) some states do not allow same-sex marriage, equivalent civil unions, limited domestic unions with limited benefits, or same-sex partner adoption. …