Conflict of Laws and Property Rights in the Age of “Semi-Legal” Same-Sex Marriages

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

In the United States federalist system, fifty different states often arrive at fifty different conclusions of law that can conflict not only with each other but also with federal law. The Supremacy Clause usually allows for the resolution of the latter conflicts, whereas conflicts among the laws of different states are less easily resolved.  That is epitomized in the split between states that recognize same-sex marriages and those that do not. Although many have celebrated the recent abrogation of the Defense of Marriage Act (DOMA) in United States v. Windsor, the decision does not foreclose further conflicts over the treatment of same-sex marriages, whether between the federal government and the states, or among the states themselves.[1] These conflicts are particularly complex in the context of property rights in same-sex marriages. In light of conflict of law jurisprudence, there is pronounced confusion about how states that do not recognize same-sex marriages may treat those couples in cases of death and the disposition of property.

Continue reading “Conflict of Laws and Property Rights in the Age of “Semi-Legal” Same-Sex Marriages”

Cracking Windsor’s Code: The Unusual Judicial Review Standard of United States v. Windsor and Its Potential Impact on Future Plaintiffs

Author: Colin P. Pool, Publications Editor, University of Cincinnati Law Review

The Supreme Court’s opinion in U.S. v. Windsor, [1] which struck down Section 3 of the Defense of Marriage Act (DOMA), has been criticized by many for a perceived “lack of clarity,”[2] or a lack of “parameters, . . . objective analysis, [or] guidance as to how to apply [it].”[3] These shortsighted characterizations misread Windsor. In fact, the Court’s analysis is based on long-established, if somewhat antiquated, equal protection jurisprudence: “careful consideration” triggered by the “unusual character” of a statute. With this standard’s reemergence, the possibility arises that future equal protection plaintiffs may be able to take advantage of it.

Continue reading “Cracking Windsor’s Code: The Unusual Judicial Review Standard of United States v. Windsor and Its Potential Impact on Future Plaintiffs”

Will Divorce Equality Bring Marriage Equality?

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

This November, the Texas Supreme Court will hear oral arguments in a suit to dissolve a same-sex marriage performed outside the state, and will be deciding two important issues: (1) whether Texas courts have jurisdiction to hear such suit, and (2) whether Texas laws prohibiting same-sex marriage are constitutional. The Court’s decision on these issues could heavily influence similar litigation across the United States. Since the Court is likely to uphold the Texas laws at issue, their decision will not bode well for couples seeking marriage equality in a state with similar laws.

Continue reading “Will Divorce Equality Bring Marriage Equality?”