Posted by: captainfalcon | July 25, 2011

Sex and the Full Faith and Credit Clause, Cont’d

Tobias Barrington Wolff has a good article addressing whether were DOMA to be repealed all states would be required to recognize gay marriages celebrated in the few states that have legalized SSM. Money-quote:

The strongest claim that a married couple can make to have their marriage “recognized” is when they have a judgment, issued by a court, that entitles them to something — money from an insurance company on a claim, for example, or a particular custodial arrangement with their kids. Under the principle of full faith and credit, states have always operated under a powerful obligation to give effect to court judgments from other states on almost every subject. This is true even when other states disagree strongly with the law that one court applies in deciding a lawsuit. Thus, if a court resolves a dispute involving a marriage between a particular set of parties in one state, and then another state is asked to give effect to the resulting judgment (for example, by ordering an unwilling party to pay up on a damages award), state number two is not allowed to disregard the judgment simply because it disagrees with the marriage laws from state number one.

When there aren’t any court judgments involved — which is frequently the case — the situation is very different. Often, a couple seeking to have their marriage “recognized” is merely interacting with the legal system in some way and wants to be treated as a married couple … When a couple asks a court to recognize their marriage in this type of situation, the analysis has always been very different. A marriage is not the same thing as a court judgment. The mere act by one state of marrying a couple has never been entitled to the kind of mandatory legal enforcement that judgments receive in our legal system. Rather, courts have always treated the recognition of out-of-state marriages as a matter of public policy, and various factors have influenced the decisions that states have made about recognizing an out-of-state marriage that could not have been entered into locally.

As always, the Lure got there first.

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.

But Professor Wolff got there before the Lure ):

Paradox. Vanity of vanities. Ouroboros.

Update: Fixed the frownie.

Further Update: Showering, I was trying to think of other shitty little arguments to the conclusion that all states are required to recognize marriages celebrated in a few. One thought – really, the only thought – was based on the Contracts Clause of the Constitution: “No State shall … pass any … Law impairing the Obligation of Contracts.”* The short answer appears to be no, this clause is a non-starter.

* I am reliably informed that the original bargain behind the Contracts Clause aimed at categorically forbidding states from passing debtor’s relief by modifying the obligations of borrowers. The bargain was basically repudiated in the 1934 case Home Building & Loan Association v. Blaisdell, in which the Supreme Court upheld a state law imposing a moratorium on foreclosures, reasoning that while a State may not “adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them … it does not follow that [emergency] conditions may not arise in which a temporary restraint of enforcement may be [constitutional].” The Court has subsequently upheld permanent modifications of contractual obligations in non-emergency conditions. At present, not much remains of the Contracts Clause.



  1. […] of the Full Faith and Credit Clause for interstate recognition of same sex marriage, which I have discussed incompetently in the past) is here. Baude’s article is also excellent, as are many of its sources. Like […]

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