Marriage, Domicile and the Constitution

In three of the major right to marry cases in which the plaintiffs challenged their domicile’s refusal to permit them to marry, the couples had married in a sister state in accord with local law. In none of these cases did the Court address the conditions under which states, as a constitutional matter, must recognize marriages validly celebrated in another state. This article argues that the position reflected in the First and Second Restatements of the Conflicts of Law captures the United States Constitution’s approach. A marriage valid in the states of celebration and domicile at the time of its celebration must be recognized throughout the country, contrary policy of the forum state notwithstanding.

In addition, the article discusses both the conditions under which states must permit the enjoyment of the incidents of marriage, and some of the changes in state law that would be necessary were the Court to expressly adopt the position advocated here.