Recognition across state and national borders of controversial forms of domestic relationships have existed throughout the history of conflict of laws, creating tension between two important principles: respect for comity and protection of valued domestic public policies. Drawing upon several examples, and particularly the history of international and intrastate recognition of slavery (a “domestic relationship”) in Anglo-American history, the article shows that despite the comity-based presumption of respect for legal status created in other jurisdictions, when strong public policies protective of domestic relations and status have been implicated, American states consistently have declined to give interstate recognition to those controversial forms of domestic relationship that are being imported. The article examines several examples of this and reviews the principles that are historically established in dealing with such conflicts, and suggests the relevance of this history and these principles for interstate recognition of same-sex marriage and other controversial contemporary domestic relationships.
© 2008 J. Reuben Clark Law School
Lynn D. Wardle, 𝘍𝘳𝘰𝘮 𝘚𝘭𝘢𝘷𝘦𝘳𝘺 𝘵𝘰 𝘚𝘢𝘮𝘦-𝘚𝘦𝘹 𝘔𝘢𝘳𝘳𝘪𝘢𝘨𝘦: 𝘊𝘰𝘮𝘪𝘵𝘺 𝘝𝘦𝘳𝘴𝘶𝘴 𝘗𝘶𝘣𝘭𝘪𝘤 𝘗𝘰𝘭𝘪𝘤𝘺 𝘪𝘯 𝘐𝘯𝘵𝘦𝘳-𝘫𝘶𝘳𝘪𝘴𝘥𝘪𝘤𝘵𝘪𝘰𝘯𝘢𝘭 𝘙𝘦𝘤𝘰𝘨𝘯𝘪𝘵𝘪𝘰𝘯 𝘰𝘧 𝘊𝘰𝘯𝘵𝘳𝘰𝘷𝘦𝘳𝘴𝘪𝘢𝘭 𝘋𝘰𝘮𝘦𝘴𝘵𝘪𝘤 𝘳𝘦𝘭𝘢𝘵𝘪𝘰𝘯𝘴, BYU L. Rᴇᴠ. 1855 (2008).