30. David P. Currie, "Full Faith and Credit to
2006); Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y.
Marriages," Green Bag 1, no. 2 (1997): 7, 8.
A.D. 2005); Morrison v. Sadler, 821 N.E.2d 15 (Ind.
Ct. App. 2005); and Samuels v. N.Y. State Department
31. Ibid., pp. 910.
of Health, 2006 WL 346465 (N.Y. A.D. 2006).
Advocates of same-sex marriage have won in
32. See, e.g., Osoinach v. Watkins, 180 So. 577 (Ala.
the following trial court decisions: Anderson v. King
1938) (marriage between nephew and widow of
City, 2004 WL 1738447 (Wash. Super Ct. 2004);
uncle); and Petition of Lieberman, 50 F. Supp. 120
California Marriage Cases, 2005 WL 583129 (Cal.
(E.D. N.Y. 1943) (marriage between niece and uncle).
Super.); and Deane v. Conoway, 2006 WL 148145
(Md. Cir. Ct.). Each of these decisions is under
33. In Virginia, state courts have held that same-
review by higher courts in the respective states.
sex civil unions from Vermont will not be recog-
nized in the state. S. Mitra Kalita, "Vt. Same-Sex
16. Senate Republican Policy Committee, "The
Unions Null in Va., Judge Says: Case Seen as Test
Threat to Marriage from the Courts," p. 9, n. 38.
of Parental Rights," Washington Post, August 21,
2003, p. B1.
17. Hawaii Const. art. I, § 23.
34. Bob Barr, "Leave Marriage to the States,"
18. An Act Relating to Civil Unions, 2000 Vt. Acts
Washington Post, August 21, 2003, p. A23.
& Resolves 91 (codified at Vt. Stat. Ann. tit. 15, §§
120207 (Supp. 2001)).
35. It is always possible that courts will abandon
this long-held view of the FFCC and choice-of-law
19. See Frank Phillips and Raphael Lewis, "Amend-
principles. Larry Kramer, "Same-Sex Marriage,
ment Would Turn Gay Marriages into Unions,"
Conflict of Laws, and the Unconstitutional Public
Boston Globe, February 11, 2004, p. A1.
Policy Exception," Yale Law Journal 106 (1997):
1965 (arguing that states do not have the right to
20. That is especially true because sister states are
refuse to recognize valid marriages performed in
unlikely to be required to recognize such out-of-
other states). Anything is possible. Yet the tradi-
state same-sex marriages.
tional view is so entrenched, and the revisionist
21. This is another fear cited by the Senate
argument so unsupported by precedent, that aban-
Republican Policy Committee, "The Threat to
donment is very unlikely.
Marriage from the Courts," p. 2.
36. Wilson, 354 F. Supp. 2d 1298 (upholding fed-
22. Lockyer v. City and County of San Francisco, 95
eral and state DOMA laws against claim of gay
P.3d 459 (Cal. 2004).
couple married in Massachusetts that Florida was
required to recognize their marriage).
23. Li v. State, 2004 WL 1258167 (Or. Cir).
37. Lawrence v. Texas, 123 S. Ct. 2472 (2003).
24. Senate Republican Policy Committee, "Why a
Marriage Amendment Is Necessary," p. 12.
38. Ibid. at 2478.
25. Senate Republican Policy Committee, "The
39. Ibid. at 2484.
Threat to Marriage from the Courts," pp. 67.
40. Ibid. at 2996 (Scalia, J., dissenting).
26. See 1 U.S.C. § 7 (2002).
41. Lofton v. Secretary of Department of Children and
27. See 28 U.S.C. § 1738C.
Family Services, 358 F.3d 804 (11th Cir. 2004), reh'g
en banc den'd, 377 F.3d 1275 (2004).
28. Smelt v. County of Orange, 374 F. Supp. 2d 861
(C.D. Cal. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298
42. Cf. Loving v. Virginia, 380 U.S. 1, 12 (1967)
(M.D. Fla. 2005); and In re Kandu, 2004 WL 1854112
(invalidating state anti-miscegenation law).
(Bankr. W.D. Wash.).
43. Lawrence at 248788 (O'Connor, J., concurring).
29. If the FFCC challenge is to occur, it will not
44. 517 U.S. 620 (1996).
come from Massachusetts. Earlier this year the
Massachusetts Supreme Judicial Court held that
45. Ibid. at 632.
same-sex couples from out of state could not
come to Massachusetts to be married if their
46. See Thomas R. Marshall, Public Opinion and the
home state would not recognize their marriage as
Supreme Court (New York: Unwin Hyman, 1989),
valid. Cote-Whitacre v. Department of Public Health,
pp. 7880; and Mae Kuykendall, "The President,
446 Mass. 844 N.E.2d 623 (Mass.; Mar. 30, 2006).
18