This Article explores the choice-of-law question of whether a same-sex couple, married in Hawaii after successful completion of the Baehr v. Lewin case, will have their marriage recognized by the state of their domicile upon their return from Hawaii. This Article first applauds the Baehr court's decision that prohibiting same-sex marriage is unconstitutional sex discrimination but then critiques its decision that the fundamental right to marry does not extend to same-sex couples.
The second Part considers the choice-of-law questions that will arise in cases litigating the validity of a couple's same-sex marriage upon their return to their domicile. It considers statutory directives, such as marriage validation and evasion statutes, and surveys the major choice-of-law theories in use today. Given the judicial discretion whether to recognize these marriages, the third Part argues that judges should recognize same-sex marriages using the better rule of law methodology. Recognizing these marriages is "better" because it would end age-old discrimination based on prejudice and misunderstanding, and would eliminate overzealous state interference with and condemnation of a most personal and intimate relationship. This Article analogizes from choice-of-law cases which arose during the reign of anti-miscegenation statutes to argue that the post-Baehr cases will expose the inherent discrimination that underlies the prohibition of same-sex marriage and argues for using choice-of-law principles to end that discrimination.
Cox, Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married When We Get Home?, 1994 Wis. L. Rev. 1033-1118.