Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception Larry Kramer Since the Hawaii Supreme Court first indicated that restricting same-sex marriage might violate its state constitution, there has been debate about whether other states are obligated to recognize such marriages validly performed in Hawaii. Congress stepped in to settle the issue, adopting its first ever choice-of-law rule in the "Defense of Marriage Act" (DOMA), which permits a state to refuse recognition to the law or judgment of another state respecting same-sex marriage. Professor Kramer explains that DOMA was unnecessary under existing law, which permits states to ignore the law of another state if that law violates forum "public policy." He further argues, however, that existing law is unconstitutional: The Full Faith and Credit Clause prohibits states from selectively discriminating in choice of law based on judgments about the quality of other states' policies. This reinterpretation of full faith and credit renders unconstitutional both the public policy exception and the "better law" approach used in some states. It follows that states must either modify their choice-of-law practice for marriage or rely on DOMA to justify refusing to recognize Hawaii law. But DOMA is also unconstitutional. While the Constitution permits Congress to define the "Effect" one state's laws or judgments shall have in another state, this power was conferred to enable Congress to refine and implement the basic obligation of full faith and credit. It does not confer power to relieve states of their responsibilities under the Full Faith and Credit Clause. Return to Issue 106-7