What about Full Faith and Credit?

Before we dive deeper into the federal cases I blogged about this morning, I thought it would be helpful to clarify a point featured in several comments. Namely, isn’t the Full Faith and Credit Clause involved here somewhere? The answer is: not very much, and certainly not enough to make the problem go away.

The Constitution provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” The clause has some application in this area, but it doesn’t force states to recognize marriages from other states for several reasons.

First of all, even though the Clause mentions “public acts,” it has not been interpreted to apply to statutes (like a law stating which marriages are valid) or marriage licenses with the same force it has for judicial proceedings. Relatedly, states have traditionally refused to give effect to another state’s statute if they think doing so is against their “public policy,” and this has been thought to be okay under the Full Faith and Credit Clause.

Moreover, even if the clause did normally require states to give effect to foreign legislation (or if the parties somehow get a judicial judgment based on their same-sex marriage), the clause delegates substantial power to Congress to decide what “effect” those acts, records, and proceedings have. And Congress has explicitly provided (in that other section of DOMA that I said wasn’t very important) that “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship.” (For lots of fascinating history demonstrating Congress’s power under the Full Faith and Credit Clause, I recommend Steve Sachs’s Full Faith and Credit in the Early Congress.)

Now, some of these points are controversial. There are scholars (like my own law school’s dean, Larry Kramer) who argue that Section 2 of DOMA is unconstitutional and that the Full Faith and Credit Clause requires greater interstate recognition of marriage. Steve Sanders has made a similar argument under the Due Process Clause. But that’s not the state of judicial doctrine today, so the interstate disagreement about same-sex marriage is still something that courts have to deal with unless and until that doctrine is radically changed.

To sum up: Yes, there are some federal rules about interstate recognition of marriages. But those rules give states enough leeway that there’s still a great deal of state disagreement, which is all that matters for purposes of my argument. If you want to know more about this, there is a ton of recent scholarship on Full Faith and Credit, some of it cited in the paper.

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