How were anti-miscegenation statutes upheld in light of the Constitutional FF&C guarantee prior to Loving v. Virginia?
As far as I can tell, that opinion didn’t touch on FF&C, and instead relied on the argument that marriage is a fundamental right… but prior to that ruling, how did anti-miscegenation statutes remain in place?
AFAICT, there was no anti-miscegenation equivalent of the federal DOMA (which is of questionable Constitutional validity anyway) in place at the time.
There’s what is known as a “public policy exception” to the full faith and credit clause when it comes to state statutes. It means, basically, that a state doesn’t have to recognize a law passed somewhere else if the state itself has a law covering the situation.
So, if Virginia has an anti-miscegenation law then it doesn’t have to recognize marriages elsewhere that are in contravention of the law.
There were attempts made to create the equivalent of a “defense of marriage” amendment. Congressional proposals for a constitutitonal ban on interracial marriages were made in 1871, 1912, and 1928. Massachusetts, which allowed interracial marriages, passed a law in 1913 which prohibited out-of-state interracial couples from getting married in Massachusetts if they could not legally get married in their home state.
What’s the point of any of the proposed DOMAs, then? Other than a constitutional amendment, obviously.
Well, the big point of the federal DOMA was to make sure that any gay marriages wouldn’t be federally recognized. I think the second part was added in to provide additional protection to the states, in case the courts ruled that the public policy exception didn’t apply in that case.
The purpose of the state DOMAs are to specifically define marriage as being between a man and woman, so that something like the Hawaii case won’t happen to them. Remember, the whole thing started when the Hawaii courts ruled that since marriage wasn’t defined as being between a man and a woman, but just between two people, the state couldn’t deny marriage licenses to same sex couples.
Thanks!
Mods, feel free to close. My GQ has been WA’d.
No, that’s not correct. The Hawaii law provided that marriage was only available to opposite sex couples. In Baehr v. Lewin, the Hawaii state Supreme Court ruled that restriction was a violation of the equal protection clause of the Hawaii state constitution, on the basis of sex. The voters subsequently changed their state constitution to prohibit same-sex marriage.
Political theatre. Most of the sponsors of these proposals know they don’t have a chance of getting the Constitution amended but it plays well with some of their voter base.
FF&C doesn’t really apply to marital status, it’s a matter of interstate comity. Commonwealth v. Custer, 145 Pa.Super. 535, 21 A.2d 524 (Pa. Super. Ct. 1941). The general rule was:
Id; Commonwealth v. Case, 200 Pa.Super. 200, 189 A.2d 756 (Pa. Super. Ct. 1963)
The First Restatement of Conflict of Laws provided:
Section 132
The Second Restatement muddies the waters some:
Section 283
Hmm. What is “strong” public policy? Statutes that are actually enforced?
Divorce laws were similar, not every state would recognize other state’s divorce decrees. This used to especially be true of Nevada divorces.
I recall in the 50s Rita Hayworth, husband singer/actor Dickie Haymes got a divorce from his wife in California, in Nevada. California didn’t recognize it and Haymes as far as California was concerned was still married.
To make matters worse California was going to allow his wife to attache Rita Hayworth’s wages for back child support. Which to me doesn’t make sense. If California didn’t recognize his divorce, then how could he be married to Rita Hayworth.
This caused Hayworth a lot of grief 'cause she couldn’t go back to Hollywood and make movies. Eventually it was all worked out and the wife agreed to the divorce in Nevada and Hayworth’s lawyers got her money to stay with Hayworth.
Of course the IRS still tried to go after Hayworth’s money to get what Dickie Haymes owed them.
So laws like divorce and marriage have never really been subject to full faith and credit clause.
Remember the constitution isn’t what it says, it is what the Supreme Court says it says.
From something I wrote elsewhere on the topic of recognition of polygamous marriages:
Andrew Koppelman, Interstate Recognition of Same-Sex Marriages and Civil Unions, 153 U. Penn. L. Rev. 2143 (2005) (pdf)
So it depends to some extent whether the state in question applies the First or Second Restatement. According to Koppelman, another author investigated the question, and concluded that 15 states follow the First, 24 the second, and the remainder were difficult to categorize. But this study considered tort law. States that apply the Restatement view to tort law questions do not necessarily follow it for other questions. Both try to handle what the author describes as “evasive” marriages (visiting a state to take advantage of its marriage laws when it has no other connection to the marrying parties). Both seem to indicate that if both parties are domiciled (don’t get me started on domicile law) in a jurisdiction that allows their marriage, and then move to a different state, whose laws forbid it, the state of new residence should respect the marriage.
But Professor Brilmayer says:
Lea Brilmayer, “Full Faith and Credit”–A Commentary, The Wall Street Journal, March 9, 2004, republished at the Yale Law School website: http://www.law.yale.edu/news/4174.htm#
Most of these cases have complex fact patterns that make conclusions hard to form. For example:
Symeon C. Symeonides, Choice of Law in the American Courts in 2003: Seventeenth Annual Survey, 52 American Journal of Comparative Law 9 (2004) (pdf)
See also, recognition of polygamous marriages on the The Niqabi Paralegal.
Immigration law has its own set of rules about polygamous marriages. As a general rule, “marriages that are counter to public policy are generally not valid for immigration purposes.”Cyrus Mehta, The Status Of Transsexuals Under US Immigration Law , Immigration Daily, August 17, 2004, ILW.com (citing Matter of Darwish, 14 I. & N. Dec. 623 (BIA 1973); Matter of H-, 9 I. & N. Dec. 640 (BIA 1962) (polygamous marriages not recognized)). As a result, only the first spouse can get a visa. E.g., http://djibouti.usembassy.gov/foreign_spouse_visas.html (”In cases of polygamy, only the first spouse may qualify as a spouse for immigration.”)
It’s not clear to me how the federal government can pass a law concerning marriage. Isn’t regulating marriage one of the power left to the states? Which power of Congress is DOMA exercising?
Its right to refuse to extend same-sex partner benefits (healthcare, and so on) to the spouses of federal employees.
SSM is a weird issue in that for once conservatives are trying to exercise federal power over the states, while liberals are trying to couch it as a states’ rights issue. This will probably go by the wayside now that the Democrats control Congress and the White House, though.
The court in Loving rejected Virginia’s argument that there was no actual equal protection violation because the anti-miscegenation law prohibited blacks and whites from marrying each other equally and punished blacks and whites equally. They did hold that marriage is a fundamental civil right, but the unconstitutionality was based on the equal protection violation.
That’s already started: State Department offers same-sex benefits
But as far as conservative-support-of-states’-rights goes, that was always a pragmatic rather than fundamental position of the Republicans. During the 80s, the GOP had taken control of a majority of state legislatures and state houses while the Dems still controlled Congress. So naturally they supported states’ rights against any liberal federal laws. But after the Republicans took control of Congress in the mid-90s, if a state tried to do anything that displeased the conservatives (Oregon’s Death with Dignity Act, for example), the Republicans had no qualms about suppressing it with federal law.