Choice of Law and Public Policy

in The Gay Rights Question in Contemporary American Law

Published by University of Chicago Press

Published in print July 2002 | ISBN: 9780226451008
Published online March 2013 | e-ISBN: 9780226451039 | DOI:
Choice of Law and Public Policy

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This chapter considers the choice-of-law problem that state courts will face. It addresses the question of interstate marriage recognition by developing an analogy with the most profound disagreement in American history over marriage recognition, the conflict of laws over interracial marriage. Until 1967, when the Supreme Court invalidated them, many state laws prohibited such marriages. Like same-sex marriage, interracial marriages involved an exceedingly strong public policy: the Southern courts regarded marriages between blacks and whites as “connections and alliances so unnatural that God and nature seem to forbid them.” The statutes prohibiting such marriages were worded at least as strongly as those of the recent state laws against same-sex marriage: they usually declared such marriages void and punished their celebration with criminal penalties. Yet even in this charged context, the courts rejected the blanket rule of nonrecognition. In every case that did not involve cohabitation within the forum, and in some that did, the Southern courts recognized interracial marriages.

Keywords: choice-of-law problem; public policy; interracial marriage; Southern courts; same-sex marriage; conflict of laws

Chapter.  13924 words. 

Subjects: Constitutional and Administrative Law

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