Same-Sex Unions
 in the
Conflict of Laws		    

If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.

U.S. Supreme Court Justice Robert H. Jackson (1948)

  
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Issues

› Introduction

› Why the Full Faith and Credit Clause Is Irrelevant

› Legal Nature of a Marriage or Other Union

› Conflicting Laws

› Nature of the Legal Problem

› Applicable Body of Conflicts Law

› Characterization

› Renvoi

› Public Policy

› Status and Incidents

› Substitution

  
 


Introduction

     Some places now grant same-sex couples a form of legal status. In five countries and one U.S. state, same-sex couples may get married.[1] In a growing list of additional places, including several U.S. states, same-sex couples may enter into similar arrangements, known variously as civil unions, civil partnerships, registered partnerships, domestic partnerships, and the like.[2] In other places, however, the law continues to deny any legal status to same-sex relationships.

     The existence of these legal statuses in some places but not others raises a question: If a same-sex couple gets married or enters into a civil partnership in one place, will other places give that marriage or partnership any legal effect? This question may implicate a number of complicated legal issues in what is termed the "conflict of laws."

     The complexity, moreover, is aggravated by indeterminacy. So far, only a handful of courts have had occasion to rule on the question of interjurisdictional recognition, so there remains a dearth of legal precedent. The relative novelty of legal arrangements for same-sex couples also means many jurisdictions have enacted no legislation dealing specifically with this recognition question. Drawing upon legal principles developed in the context of opposite-sex marriages, though possible, may be hazardous, as same-sex relationships may not receive the same treatment.

     Nevertheless, entries accessible by way of the links to the left attempt to provide a cursory introduction to some of the issues that may arise in attempts to secure legal recognition in one place of a same-sex marriage or partnership that was celebrated, registered, or contracted in another. These discussions, of course, are not meant as a substitute for professional legal advice in any particular situation. Entries will be added as they are completed.

Notes

1. The countries are the Netherlands, Belgium, Spain, Canada, and South Africa. The U.S. state is Massachusetts.

2. For a good, informal list see Wikipedia's entry "Civil unions."

 

Last updated: November 19, 2007
© 2007 by Stephen Clark