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The Gay Rights Question in Contemporary American Law$
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Andrew Koppelman

Print publication date: 2002

Print ISBN-13: 9780226451008

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226451039.001.0001

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Choice of Law and Public Policy

Choice of Law and Public Policy

(p.94) Chapter Five Choice of Law and Public Policy
The Gay Rights Question in Contemporary American Law
University of Chicago Press

This chapter considers the choice-of-law problem that state courts will face. It addresses the question of interstate marriage recognition by developing an analogy with the most profound disagreement in American history over marriage recognition, the conflict of laws over interracial marriage. Until 1967, when the Supreme Court invalidated them, many state laws prohibited such marriages. Like same-sex marriage, interracial marriages involved an exceedingly strong public policy: the Southern courts regarded marriages between blacks and whites as “connections and alliances so unnatural that God and nature seem to forbid them.” The statutes prohibiting such marriages were worded at least as strongly as those of the recent state laws against same-sex marriage: they usually declared such marriages void and punished their celebration with criminal penalties. Yet even in this charged context, the courts rejected the blanket rule of nonrecognition. In every case that did not involve cohabitation within the forum, and in some that did, the Southern courts recognized interracial marriages.

Keywords:   choice-of-law problem, public policy, interracial marriage, Southern courts, same-sex marriage, conflict of laws

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