This eminently readable article articulates the conflict of laws issues raised by same-sex marriage. Included are discussions of the obligations of states to respect other states' laws or judgments, and whether DOMA violates the Full Faith and Credit Clause.

The Marriage Protection Act of 2004 (MPA), or House Bill 3313, would strip the federal courts of jurisdiction over same-sex marriage cases. This article provides some history of the MPA. It examines the federal courts’ powers of judicial review, and Congress’s power over the courts. It concludes that attempts to curtail judicial review through the MPA would be unconstitutional. Equal protection, full faith and credit, and due process analyses are all discussed.

All too often the debate over same-sex marriage takes on an erudite, disinterested intellectual tone as constitutional issues are pondered, social trends reviewed, and judicial opinions summarized. Knauer, a frequent writer on the topic, does some of this in her brief article about the shortcomings of federalism for this topic. The eye is drawn, however, to the concluding section which points out the real human costs of the disparate state approaches concerning gay and lesbian relationships.

This author examines some issues that arise under various state “defense of marriage” laws. He identifies a number of issues that aren’t generally covered by those laws, such as persons migrating to the state, individuals attempting to avoid obligations incurred in other states, and litigation related to children of same-sex marriages who are now residing in the state. A number of attempts to deal with those situations, either by denying “contractual rights” to same-sex couples, by refusing to enforce judgments from other states related to same-sex unions, or by “blanket nonrecognition,” are most likely unconstitutional, because they either violate the Equal Protection or Full Faith and Credit clauses of the U.S. Constitution.

Massachusetts General Law chapter 207, section 11, prohibits the issuance of marriage licenses to non-resident couples who reside in states where their marriages would be void. This article analyzes this “marriage evasion statute” as it applies to same-sex couples. It concludes that the statue violates the Privileges and Immunities Clause of the United States Constitution.

Rather than a legitimate experiment in the laboratories of the states, federalism offers instead only a stage of historical accident for the thrashing out of the same-sex marriage controversy. Poirier frames the struggle instead as a "kulturkampf," or culture war, a term invoked by U. S. Supreme Court Justice Scalia in his Romer v. Evans dissent (517 U.S. 620, 636 (1996)). The error of the first view is that the state is the proper level of analysis at which to frame the central arguments at issue in marriage adjudication. In contrast, Poirier points out that the "core dynamics are either local and place-based, or are universal and aterritorial." Resort to federalism is therefore "tactical" rather than central, a "beachhead" attempt to make opportunistic arguments. "Where Kulturkampf and cultural identity are concerned, federalism simply is not the main event."

The student author argues for the recognition of extraterritorial same-sex marriages by New York under the comity doctrine. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) serves springboard for this commentary, wherein the New York Court of Appeals denied that the state constitution compelled recognition of same-sex marriages. Hernandez, which dealt with the question of issuing licenses of New York citizens, influenced later cases ruling on the question of recognition of marriages in foreign jurisdictions, such as Funderburke v. New York State Department of Civil Service, 822 N.Y.S.2d 393 (Nassau County Sup. Ct. 2006), Godfrey v. Spano, 836 N.Y.S.2d 813 (Westchester County Sup. Ct. 2007), and Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep't Feb. 1, 2008), which disagreed over whether Hernandez had changed the law as concerned comity. This outcome is allowed, he says, because "the spirit of New York law safeguards citizens with respect to matters of sexual orientation, rendering the public policy arguments [for exemptions from comity obligations] untenable."

The author begins with a brief discussion of the federal Defense of Marriage Act, and the Full Faith and Credit Clause of the U.S. Constitution, and finds that neither is dispositive on the issue of whether a same-sex marriage in one state must be recognized in another. He then analyzes the New York state case In re May’s Estate [148 N.E.2d 4 (N.Y. 1953)] to see whether a choice-of-law argument might help proponents of same-sex marriage to advance their claims. While the decision in May’s Estate would seem to do so, the author finds the case to have been improperly decided. He concludes, however, that the Equal Protection, Due Process, and Establishment Clauses of the U.S. Constitution would require a state to recognize same-sex marriages performed in another state.

As the story is told, we are today burdened with the federal DOMA law, as well as the states' mini-DOMAs, in large measure because of the rhetoric surrounding the Hawaii Baehr decision, 851 P.2d 44 (Haw. 1993). Advocates argued that should Hawaii begin to recognize same-sex marriages, other states would be forced to recognize them through the Full Faith and Credit Clause of the Constitution. Wardle argues that this belief is unfounded. Reviewing earlier instances of "controversial domestic relations" (i.e., slavery, polygamy, among others), he finds the the pertinent litigation turned not on comity under full faith and credit, but rather the forum's sovereign domestic relations policy. One could use his result to then argue that DOMA was an empty hysterical gesture, but Wardle does not see this obvious implication of his study.

Are states required by the U.S. Constitution to recognize an adoption degree in another state regardless of the parents' sexual orientation. At least one state -- Oklahoma -- and one high-profile commentator -- Lynn Wardle -- say no, that, in the latter's words, "in many situations nonrecognition of lesbigay adoption decrees would be proper and permissible." Wasserman examines four different rationales to support such a conclusion, finding all to be flawed. Wardle's antigay posture, she argues, is contrary to "both Supreme Court precedent and an overriding policy favoring permanency in parent-child relationships."