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Why the Full Faith and Credit Clause Is Irrelevant
People often assume that the Full Faith and Credit Clause (FFC
Clause) of the U.S. Constitution requires one state to recognize
marriages that are performed in another state. They also believe that
Congress, through section 2 of the federal Defense of Marriage Act (DOMA),
has overridden that obligation.
The problem with these assumptions is that they are incorrect. There
is a consensus among qualified legal scholars--progressive and
conservative alike—that the FFC Clause does NOT require interstate
recognition of marriages and that section 2 of DOMA is therefore legally
superfluous and irrelevant.
The texts of these provisions might seem to support the faulty
assumptions. The Full Faith and Credit Clause provides that “Full Faith
and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State.” (U.S. Const. art. IV, § 1.)
A federal statute echoes the same language. (28 U.S.C. § 1738.)
It is often the case, however, that legal text is not what it may
seem. However anyone else might read this language, the U.S. Supreme
Court has final authority in the American system for giving the FFC
Clause a binding interpretation. That court has done so in a large
number of cases.
The Court’s decisions establish a very firm distinction, under the
FFC Clause, between interstate recognition of “judicial proceedings” and
interstate recognition of “public acts.” Although those concepts appear
side-by-side in the FFC Clause, the Court has never interpreted the FFC
Clause as imposing the same obligation with respect to each of them.
As interpreted by the Court, the FFC Clause almost always requires
one state to recognize the “judicial proceedings” of another state, as
long as those proceedings have reached a final conclusion. This
obligation applies to divorce decrees as well as adoption decrees. If
one state grants a same-sex divorce or a same-sex marriage, the FFC
Clause almost certainly requires other states to recognize those
judicial decrees.
But the same rule does not apply to “public acts,” including
marriages. For decades the Court has made crystal clear that one state
can often simply ignore the public acts of other states if it wants to.
The strong obligation of recognition that applies to judicial
proceedings does not apply to public acts. The FFC Clause, as
interpreted by the Court, allows one state to ignore the public acts of
another state as long as the ignoring state has some minimum connection
to the case at hand.
Although marriages may sometimes be solemnized by judges, they are
not judicial proceedings. They are not entitled to the strong duty of
interstate recognition that judicial proceedings receive under the FFC
Clause. Failing to appreciate that basic distinction between judicial
proceedings and public acts is the chief flaw in the assumption that the
FFC Clause requires one state to recognize marriages performed in
another.
Nor is the Court going to eliminate that distinction or extend the
strong duty of interstate recognition to public acts, including
marriages. Today’s weak requirement to recognize public acts is a
product of decades of experience in which somewhat stronger requirements
proved unworkable. Changing today’s well-established interpretation of
the FFC Clause would disrupt interstate relations in just about every
area of the law. The Court is not going to do it. That is why even
progressive, pro-gay legal scholars with expertise in this area concede
that the FFC Clause does not require one state to recognize marriages
performed in another state.
This established interpretation of the FFC Clause renders section 2
of DOMA superfluous and irrelevant, as qualified legal scholars
generally recognize. Section 2 of DOMA does purport to allow states to
disregard the FFC Clause and ignore out-of-state same-sex marriages. But
because the FFC Clause itself usually would not require interstate
recognition of same-sex marriages anyway, section 2 of DOMA, in most
cases, does nothing because there is no FFC Clause obligation to
override.
Some pro-gay and anti-gay advocates--lacking expertise in this area
of the law--have spread the misconception that the Full Faith and Credit
Clause requires interstate recognition of same-sex marriages. (Anti-gay
advocates have done so to try to scare people into supporting a federal
marriage amendment.)
Last updated:
November 19, 2007
© 2007 by Stephen
Clark |
