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Hastings Constitutional Law Quarterly


The critical issue the Defense of Marriage Act ("DOMA") resolves is: who decides? Who decides whether, when, and to what extent same-sex marriages created in one American state will be recognized by other state governments, and by the federal government? That structural issue is the most important issue at stake in the controversy about interstate recognition of same-sex marriage in the United States. It is a question legal proceduralists and legal structuralists--such as conflict of laws --scholars can, should, and largely do understand and appreciate. The structural matters of respect for the constitutional allocation of government, and adherence to legitimate processes to decide important issues are at least as important--and are probably even more important to our nation's legal system--as the very significant substantive policies concerning same-sex marriage and inter-jurisdictional recognition of same-sex marriage.

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