Involuntary Imports: Williams v. Lutwak, the Defense of Marriage Act, Federalistm, and 'Thick' and 'Thin' Conceptions of Marriage
Lynn D. Wardle,
Involuntary Imports: Williams v. Lutwak, the Defense of Marriage Act, Federalistm, and 'Thick' and 'Thin' Conceptions of Marriage,
81 Fordham L. Rev. 771(2012-2013),
Available at: https://digitalcommons.law.byu.edu/faculty_scholarship/144
Williams, Lutwak, jurisdiction, import, federalism, thick, thin, marriage, same-sex marriage, DOMA, Defense of Marriage Act
Profound conflicts may arise when a person enters into a same-sex marriage in one jurisdiction where such marriages are permitted and then attempts to import that marital status into another jurisdiction where same-sex marriage is not permitted. The Supreme Court, in North Carolina v. Williams I and II, established the standard for interstate (horizontal) recognition of marital status. In Lutwak v. United States the court set out the standards for vertical recognition of marital status (federal-state and federal-international). Both of these principles are codified in DOMA.
There are compelling justifications to protect the traditional “thick” concept of marriage as a gender integrating institution rich with meaning and responsibility. Likewise, there are justifications for rejecting the new “thin” conception of marriage with its diminished requirements, duties, and more subjective content. Courts should resist letting political movements distort sound judicial analysis. Prudence on the part of the same-sex movement, including efforts to accomplish its goal legislatively rather than through the courts, may increase the value and longevity of this social movement’s contribution to the development of the law.
81 Fordham L. Rev. 771
Fordham Law Review