Resolving Interstate Conflicts Over Same-Sex Non-Marriage
Abstract
States have adopted several different regimes of recognition for same-sex couples. Five states allow same-sex couples to marry; several others recognize marriage-like partnerships (usually called civil unions), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; still others offer marriage-lite partnerships (sometimes called reciprocal benefits arrangements), which provide a small subset of the rights and responsibilities associated with marriage; and, of course, others offer no recognition at all.
What happens when these regimes of recognition collide? For example, what happens when a couple marries in Massachusetts and then moves to a marriage-like state, like California. Will, and should, California recognize the Massachusetts marriage as a marriage under California law; or should it refuse to recognize it entirely; or should it automatically convert the relationship to California’s marriage-like alternative?
Concerning these issues, which I call the Marriage/Marriage-Like/Marriage-Lite conflicts, the law is deeply unsettled. Further, until now, scholars have focused nearly exclusively on conflicts that arise between states that recognize same-sex marriage and those that offer them no recognition at all, ignoring the Marriage/Marriage-Like/Marriage-Lite conflicts; and the approaches they have offered do not translate to this new context. This Article fills this lacuna and offers a new framework for resolving the Marriage/Marriage-Like/Marriage-Lite conflicts. It also explores some of the substantial implications of this new approach.