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 Fᴏʀᴅʜᴀᴍ L. Rᴇᴠ. 771 (2012).
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