The Difference the Mini-DOMAs Make

Abstract

Forty-four states now have statutes barring same-sex marriage. These laws were enacted in three waves, in response to the progress of the movement toward same-sex marriage. In the early 1970s, reacting to a few lawsuits filed by same-sex couples who sought to marry, a number of states enacted laws declaring that marriage would only be recognized between a man and a woman. A larger wave of statutes was enacted after a 1993 Hawaii Supreme Court decision made it seem likely that Hawaii would shortly recognize same-sex marriage.1 Finally, the most recent wave of laws and constitutional amendments followed decisions in which state supreme courts in Vermont and Massachusetts construed their states’ constitutions as mandating the recognition of same-sex relationships.2 In this essay, I will discuss how these laws affect cases involving choice of law issues. Some of the consequences of these laws are surprising. Some are so harsh and irrational as to make the laws unconstitutional. At the time of this essay’s writing, in June 2006, there were forty states with post-1993 mini-Defense of Marriage Acts (“mini-DOMAs”), so called because they mimic the effort of the federal Defense of Marriage Act of 19963 to contain the interstate effect of one state’s