Posted by: captainfalcon | March 24, 2011

Sex and the Full Faith and Credit Clause

Here are three interesting and unresolved legal puzzles involving the Full Faith and Credit Clause of the Constitution. I am not, obviously, the first person to recognize that they are interesting.  More importantly, my research is ongoing and I wrote this primarily to get a sense of my present understanding of the field; take it all with some salt-grains. With those disclaimers out of the way, the Full Faith and Credit Clause:

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.

In order from second most interesting, to least interesting, to most interesting.

I. DOMA Section 2

The first interesting issue is whether this provision of the Defense of Marriage Act – Section 2 – is a constitutionally permissible exercise of Congress’s power under Full Faith and Credit: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

It is an entirely unresolved issue. Congress has previously passed legislation implementing the full faith and credit requirement, but never before DOMA has that legislation been aimed at excluding a class of acts, records and judicial proceedings from the full faith and credit requirement. The law reviews are all over the map on it. Citing no case law (because there is none), one argues that DOMA’s limitation is not a “general law” because it is so specific and so obviously geared toward thwarting widespread recognition of same-sex marriages. Another observes that congressional limitations on the full faith and credit requirement seem to be in tension with the first sentence of the clause, which appears to categorically mandate giving full faith and credit to statutes, records and judicial proceedings. (A third, more general, defense of DOMA points out that the law is, in fact, in furtherance of the central goals of American federalism: safeguarding the laboratory of states, ensuring the possibility of voting with your feet, preventing some states from imposing their own preferred visions of society on others. This is plausible to me, but how these considerations relate to the Full Faith and Credit Clause is unclear.)

II Same-Sex Marriage

It is somewhat controversial whether it is permissible for a state not to recognize same-sex marriages celebrated in another, though you would be forgiven for thinking that the issue should be easy. A marriage license is a public record. Every state must give public records full faith and credit. If two people have a marriage license, then, giving it full faith and credit requires a state to confer on them all the legal benefits of marriage. A fortiori, if two people of the same sex have a marriage license, their marriage is entitled to recognition in all states.

There are two problems. The first, obviously, is DOMA. If it is Constitutional then there is an exception to the full faith and credit clause that extends, inter alia, to marriage licenses for same-sex couples.

The second problem is that – notwithstanding the “full” – the Supreme Court has held that states are required to give different levels of “faith and credit” to other states’ statutes (on the one hand) and court judgments (on the other).

Judgments. Irrespective of a dissent by Justice Frankfurter from back in the 1940s, all states are required to enforce and recognize – give full full faith and credit – to the valid and final judgments of other states’ courts. These are judgments that (i) were issued by a state court with jurisdiction over the case and (ii) have been reached “on the merits” (roughly: a full judicial proceeding – hearing, decision, etc. – has been conducted; so a pretty good example of a judgment not on the merits is a court’s issuance of a marriage license).

Statutes. the Court has held that states aren’t required to give full faith and credit to laws that violate their “legitimate public policy” as expressed in statutes, common law, or the general mores. Where there is a “legitimate” conflict between one state’s law and another the state may choose to apply its own law. The devil is in what counts as “legitimate,” but if one state legitimately declines to recognize same-sex marriages then it may choose not to recognize one that would be recognized – because it was actually authorized and celebrated – elsewhere.

There may be some hard cases. For example, what happens if a court in a state that recognizes same-sex marriage holds that two men are married? Or it may be that the question is settled, but I haven’t yet found the answer. (Also notice that, as far as I can tell, no court has addressed whether public records are to be treated more like judgments or more like statutes for Full Faith and Credit purposes.)

By and large, however, it seems likely that for as long as state policies against same sex marriage are deemed “legitimate,” Full Faith and Credit is not a viable strategy for getting them generally recognized. (Though a very good law review article by Andrew Koppelman complicates the picture somewhat. Here’s his most recent statement on the subject, the summary of which suggests it is a restatement of the one I’ve read, but cannot find freely available.)

III Transsexual Marriage

The most interesting of this cluster of SSM / Full Faith and Credit issues is transsexual marriage. Here’s the scenario. A male gets a sex change in some state (say Wisconsin). Wisconsin reissues her birth certificate with “female” instead of “male” checked off on it. She subsequently marries a man in Kansas. Her husband dies. She claims his estate as her spouse; her husband’s son claims it on the grounds that the marriage was void ab initio.

This is a statement of the facts – importantly incomplete, as we shall see – in In Re Estate of Gardiner, 273 Kan. 191 (Kan. 2002). Gardiner is one of about five cases dealing with the effect of an out-of-state sex change, and – if the secondary literature I read is accurate (and I am remembering it correctly) – one of two that mentions the Full Faith and Credit Clause. Mentions, but does not analyze. Instead, the Kansas Supreme Court elided Full Faith and Credit and proceeded directly to the construction of a Kansas statute defining marriage as “a civil contract between two parties who are of opposite sex.” K.S.A. § 23-101. The Gardiner court held that:

The words ‘sex,’ ‘male,’ and ‘female’ in everyday understanding do not encompass transsexuals. The plain, ordinary meaning of “persons of the opposite sex” contemplates a biological man and a biological woman and not persons who are experiencing gender dysphoria … the transsexual still inhabits a male body in all aspects other than what the physicians have supplied. J’Noel [the decedent’s purported wife] does not fit the common meaning of female. In Re Estate of Gardiner, 273 Kan. at 213.

It is indeterminate what implications for Full Faith and Credit this holding carries with it. One possibility is that it reflects the court’s implicit judgment that (a) out of state records are to be treated like out of state statutes for Full Faith and Credit purposes, and (b) there is a legitimate public policy in Kansas against transsexual marriage.

Alternatively, it could suggest that the court thinks that as a matter of law sex – unlike whether one has married or adopted a child, etc. – is not determined by legal instruments. The judgment could be, in other words, that whether someone is a male or a female has nothing to do with what’s on his birth certificate, and everything to do with non-legal facts about him. On this view, a birth certificate might well be determinative of, e.g., a person’s name – and if that was in dispute then the court would give full faith and credit to the Wisconsin record – but not of his or her sex. (It, of course, remains an open question whether the proper understanding of “male” and “female” subsumes transsexual males and females. But it is a question to be answered by state courts without reference to other states’ legal records.)

Here’s an analogy that makes this alternative approach seem somewhat plausible. Imagine J’Noel wanted to run for Governor of Kansas and had introduced her Wisconsin birth certificate as evidence she satisfied the age requirement. Further imagine, however bizarre the thought, that Wisconsin tolls age differently from the way Kansas does; for whatever reason Wisconsin starts the count at age five. (Thus, you might say, J’Noel is five years younger than her age as stated on her Wisconsin birth certificate.) Also imagine (for the hell of it – I’m actually not sure where this fits in) that the Kansas courts ordinarily treat the age stated on Kansas’ birth certificates as strong evidence of actual age. Finally, say that Kansas requires you to be thirty-five to run for governor, and J’Noel’s Wisconsin birth certificate says she is thirty-five.

To me, it seems quite clear that, in this hypothetical, J’Noel is actually thirty – that’s a pre-legal fact about her – so she’s ineligible to run for Governor in Kansas. In fact, for Kansas’s purposes, the Wisconsin birth certificate does not say anything about J’Noel’s age. In Kansas, age is a pre-legal fact; in Wisconsin age is a legal construct. The same word refers to different concepts, and so it Wisconsin law using the word simply does not interface with Kansas law. (It would be as though on Wisconsin’s birth certificates “firearm” meant male. Plainly a designation of somebody as a “firearm” in Wisconsin would not require him to register in Kansas, assuming firearms need be registered there.)

Analogously: if someone’s sex, like his age, is a pre-legal fact about him then the sex printed on his birth certificate is irrelevant. (A problem for this approach, however, is that the federal government and the states in fact give a great deal of weight to information printed on birth certificates. So it seems that judgments of sex (maybe also age) are not entirely unaffected by legal factors. Full Faith and Credit rears its head again. Maybe)

Bracket the theorizing for a moment, and return, in closing, to the statement of facts with which I began. J’Noel gets a sex change in Wisconsin. Wisconsin reissues her birth certificate with “female” instead of “male” checked off on it. She subsequently marries a man in Kansas. Her husband dies. She claims his estate as her spouse; her husband’s son claims it on the grounds that the marriage was void ab initio.

There are two ways in which J’Noel’s case is arguably stronger than it would have been pre-operation. First, DOMA Section 2 does not define “persons of the same sex,” leaving open that it does not carve out an exception to the full faith and credit requirement for transsexual couples.

Second, I earlier said this statement of facts was importantly incomplete. Specifically, it does not specify the means by which Wisconsin reissued the birth certificate. Some states require a full judicial hearing, followed by a court order, before the birth certificate is changed. The reissued birth certificate is thus arguably the expression of a valid and final judgment rather than a public record; it is thus arguable that the “legitimate public policy” exception doesn’t apply. (One law review article I read motivated this position by analogy to adoption cases. In some adoption cases the resultant name change is treated as a valid and final judgment. A fortiori, the reissued birth certificate is treated as valid and final judgment, as well.)

And that’s another day, gone.

[Updated: fixed some formatting; added some content, which may worsen the overall product.]



  1. […] being considered marriage and the former something else.  A number of people, including here on the Lure, have quite rightly and ably argued that this logic would also excluded infertile or other sorts […]

  2. […] always, the Lure got there first. Judgments. Irrespective of a dissent by Justice Frankfurter from back in the 1940s, all states are […]

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