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

Recognition across state and national borders of controversial forms of domestic relationships have existed throughout the history of conflict of laws, creating tension between two important principles: respect for comity and protection of valued domestic public policies. Drawing upon several examples, and particularly the history of international and intrastate recognition of slavery (a “domestic relationship”) in Anglo-American history, the article shows that despite the comity-based presumption of respect for legal status created in other jurisdictions, when strong public policies protective of domestic relations and status have been implicated, American states consistently have declined to give interstate recognition to those controversial forms of domestic relationship that are being imported. The article examines several examples of this and reviews the principles that are historically established in dealing with such conflicts, and suggests the relevance of this history and these principles for interstate recognition of same-sex marriage and other controversial contemporary domestic relationships

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

Recognition across state and national borders of controversial forms of domestic relationships have existed throughout the history of conflict of laws, creating tension between two important principles: respect for comity and protection of valued domestic public policies. Drawing upon several examples, and particularly the history of international and intrastate recognition of slavery (a “domestic relationship”) in Anglo-American history, the article shows that despite the comity-based presumption of respect for legal status created in other jurisdictions, when strong public policies protective of domestic relations and status have been implicated, American states consistently have declined to give interstate recognition to those controversial forms of domestic relationship that are being imported. The article examines several examples of this and reviews the principles that are historically established in dealing with such conflicts, and suggests the relevance of this history and these principles for interstate recognition of same-sex marriage and other controversial contemporary domestic relationships

The Boundaries of Belonging: Allegiance, Purpose and the Definition of Marriage

This article addresses an important concept theme in family law scholarship: that of belonging. This paper will address the boundaries of belonging, the need to preserve boundaries to preserve communities, particularly the community of marriage, and to protect and maintain the opportunity and value of belonging to such communities. One of the paradoxes of belonging is that the need to belong also creates a need to exclude; in order for belonging to occur, there must be boundaries, standards defining the relationship, and criteria separating members of the group from nonmembers. The boundaries of marriage must reflect the key purposes of the community. This article explains why allowing same-sex couples to marry would seriously undermine the basic legal and social institution of marriage. This article seeks to establish five basic points about the boundaries of marriage. First, boundaries and exclusion are necessary for all communities, including the community of marriage. Second, boundaries must reflect, protect, and reinforce the core principles of the community. Third, gender integration is a critical, core purpose of marriage. Fourth, legalizing same-sex denies and undermines the core gender-integrative purposes of marriage. Finally, in setting the boundaries of basic social institutions such as marriage, it is especially important to follow the legitimate process of democratic self-government, and not abuse or circumvent, evade or cut off those important political processes which help society learn, grow, unite and heal

Deconstructing Family: A Critique of the American Law Institute\u27s Domestic Partners Proposal

In promulgating the Principles of the Law of Family Dissolution: Analysis and Recommendations ( Family Dissolution Principles ), the American Law Institute (ALI) proposes an extensive set of new rules to apply in proceedings relating to family dissolution. One of the major policy changes in family law proposed by the Family Dissolution Principles is the expansion of the scope of relationships that are treated as family relations. Many relationships that in the past have been called alternative relationships (alternative to family relationships) are treated in the ALI Principles as equal to and given the same legal protections, benefits, rights, and remedies as historically have been extended by law to a relatively narrow range of intimate or domestic interpersonal relationships, specifically spousal and parent-child relations in the traditional marriage-based family. Most of the Chapters of the Family Dissolution Principles contain provisions that deconstruct and redefine family relationships. For example, many of the sections of Chapter 2 (Custody), Chapter 5 (Compensatory Payments), Chapter 6 (Domestic Partners) and Chapter 7 (Agreements) contain provisions that significantly expand protected family relations or radically alter existing family law doctrines. Among the most controversial of the proposed levelling reforms are those in Chapter 6 (Domestic Partners) where the ALI proposes to significantly increase the types of relationships that may claim the full economic protections and privileges of marital status upon dissolution. In Chapter 6, the ALI moves toward equalizing the legal status of all adult domestic relationships and the economic consequences of their dissolution by broadly defining domestic partners, liberally providing for how that status may be established, and proposing to extend almost exactly the same economic benefits to domestic partners as are provided to married couples upon dissolution. This article focuses on Chapter 6 to demonstrate the family-deconstruction-and-relational-equalization theme of the ALI\u27s Family Dissolution Principles. It argues that Chapter 6 is predicated upon some erroneous assumptions about the characteristics of same-sex and heterosexual non-marital cohabitation, as well as the nature and qualities of marriage in general, and about the sameness of the economic expectations and interdependence of non-marital cohabitants and marital couples. It concludes that the ALI\u27s Principles significantly redefines and deconstruct s the family by substantially and unjustifiably expanding the categories of relationships that are given legal preference as family relationships

The Boundaries of Belonging: Allegiance, Purpose and the Definition of Marriage

This article addresses an important concept theme in family law scholarship: that of belonging. This paper will address the boundaries of belonging, the need to preserve boundaries to preserve communities, particularly the community of marriage, and to protect and maintain the opportunity and value of belonging to such communities. One of the paradoxes of belonging is that the need to belong also creates a need to exclude; in order for belonging to occur, there must be boundaries, standards defining the relationship, and criteria separating members of the group from nonmembers. The boundaries of marriage must reflect the key purposes of the community. This article explains why allowing same-sex couples to marry would seriously undermine the basic legal and social institution of marriage. This article seeks to establish five basic points about the boundaries of marriage. First, boundaries and exclusion are necessary for all communities, including the community of marriage. Second, boundaries must reflect, protect, and reinforce the core principles of the community. Third, gender integration is a critical, core purpose of marriage. Fourth, legalizing same-sex denies and undermines the core gender-integrative purposes of marriage. Finally, in setting the boundaries of basic social institutions such as marriage, it is especially important to follow the legitimate process of democratic self-government, and not abuse or circumvent, evade or cut off those important political processes which help society learn, grow, unite and heal