Leaving Home? Domicile, Family, and Gender

Susan Appleton | 47 UC Davis Law Review 1453 (2014) | PDF 

In striking down the sex-based definitions in the Defense of Marriage of Act (“DOMA”) in United States v. Windsor, the Supreme Court lectured Congress and everyone else about the local character of family law in our federal system. In particular, the Court pointed out the longstanding tradition that makes marriage definition and regulation state prerogatives. The Court then went on to hold that DOMA’s restrictive definitions of “marriage” and “spouse” unconstitutionally discriminate against “persons who are joined in same-sex marriages made lawful by the State.” In marking the divide between federal and state authority and emphasizing the latter, however, the Court notably left unaddressed the question of the proper allocation of power over family law among the states. Put differently, the majority opinion failed to identify which state’s law should govern in a multijurisdictional marriage case — an omission underscored by Justice Scalia’s riff on the choice of law questions left after Windsor. Read more...