# Anti-Miscegenation Laws and Full Faith & Credit **URL:** \ **Category:** Factual Questions\ **Created:** [May 27, 2009, 5:11pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812 "2009-05-27T17:11:39Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 27, 2009, 5:11pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/1 "2009-05-27T17:11:39Z")
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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 27, 2009, 5:24pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/2 "2009-05-27T17:24:49Z")
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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 27, 2009, 5:25pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/3 "2009-05-27T17:25:48Z")
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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 27, 2009, 5:30pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/4 "2009-05-27T17:30:37Z")
> [@Captain\_Amazing](#): > > So, if Virginia has an anti-miscegenation law then it doesn’t have to recognize marriages elsewhere that are in contravention of the law. What’s the point of any of the proposed DOMAs, then? Other than a constitutional amendment, obviously. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 27, 2009, 5:45pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/5 "2009-05-27T17:45:15Z")
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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 27, 2009, 5:54pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/6 "2009-05-27T17:54:01Z")
Thanks! Mods, feel free to close. My GQ has been WA’d. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 27, 2009, 6:57pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/7 "2009-05-27T18:57:53Z")
> [@Captain\_Amazing](#): > > 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. No, that’s not correct. The Hawaii law provided that marriage was only available to opposite sex couples. In [Baehr v. Lewin](http://www.enotes.com/everyday-law-encyclopedia/gay-couples#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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 27, 2009, 7:49pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/8 "2009-05-27T19:49:28Z")
> [@](#): > > What’s the point of any of the proposed DOMAs, then? Other than a constitutional amendment, obviously. 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 27, 2009, 7:52pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/9 "2009-05-27T19:52:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. 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: > [@](#): > > a marriage valid where contracted is valid everywhere and this rule has long been upheld in this state. Phillips v. Gregg, 10 Watts 158, 168, 36 Am.Dec. 158; \*540 Van Storch v. Griffin, 71 Pa. 240, 244; In re Stull’s Estate, 183 Pa. 625, 630, 39 A. 16, 39 L.R.A. 539, 63 Am.St.Rep. 776; In re McCausland’s Estate, 213 Pa. 189, 193, 62 A. 780, 110 Am.St.Rep. 540; Schofield v. Schofield (No. 1), 51 Pa. Superior Ct. 564, 568. There are some exceptions to this rule. Corpus Juris (38 C.J., Marriage, § 3, p. 1277) states the proposition thus: “An exception to the general rule, however, is ordinarily made in the case of marriages repugnant to the public policy of the domicile of the parties, in respect of polygamy, incest, or miscegenation, or otherwise contrary to its positive laws.” _Id_; Commonwealth v. Case, 200 Pa.Super. 200, 189 A.2d 756 (Pa. Super. Ct. 1963) The First Restatement of Conflict of Laws provided: > [@](#): > > A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases: > (a) polygamous marriage, > (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil, > (c) marriage between persons of different races where such marriages are at the domicil regarded as odious, > (d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state. Section 132 The Second Restatement muddies the waters some: > [@](#): > > (1) The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage under the principles stated in § 6. > > (2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. Section 283 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 27, 2009, 9:25pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/10 "2009-05-27T21:25:47Z")
Hmm. What is “strong” public policy? Statutes that are actually enforced? ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [May 27, 2009, 9:42pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/11 "2009-05-27T21:42:55Z")
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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 27, 2009, 9:45pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/12 "2009-05-27T21:45:38Z")
From something I wrote elsewhere on the topic of recognition of polygamous marriages: > [@](#): > > The First Restatement holds that a marriage, “which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere” in cases of polygamy, incest as defined by the domicile, “marriage between persons of different races where such marriages are at the domicil regarded as odious,” or other marriages governed by evasion statutes. The Second Restatement made this rule less stringent, providing that, in order for another state to void a marriage, that state must have a “strong public policy” against the marriage and “the most significant relationship to the spouses and the marriage at the time of the marriage.” Andrew Koppelman, _Interstate Recognition of Same-Sex Marriages and Civil Unions_, 153 U. Penn. L. Rev. 2143 (2005) ([pdf](http://www.pennumbra.com/issues/pdfs/153-6/Koppelman.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: > [@](#): > > The “public policy doctrine,” almost as old as this country’s legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses. 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#](http://www.law.yale.edu/news/4174.htm#) Most of these cases have complex fact patterns that make conclusions hard to form. For example: > [@](#): > > \*Lopes v. Lopes \*involved a Dominican Republic bilateral divorce, which a Connecticut husband obtained at a time he and his wife were domiciled in Connecticut. The wife remarried in Connecticut and, 15 years later, she filed for divorce from her second husband in Florida, where the spouses had moved at some prior time. Although neither Florida nor Connecticut recognized the Dominican divorce, only Florida, not Connecticut, allowed the second husband to challenge its validity. The second husband did so. The court found that the wife did not timely plead Connecticut law and thus the court was free to assume that that law was the same as Florida law. Over a strong dissent, the court applied Florida law and declared the second marriage void, thus freeing the second husband from having to pay alimony. The court also rejected the wife’s estoppel argument because the trial court believed the second husband’s claim that he did not know of the Dominican divorce until 12 years into the marriage. Symeon C. Symeonides, _Choice of Law in the American Courts in 2003: Seventeenth Annual Survey_, 52 American Journal of Comparative Law 9 (2004) ([pdf](http://www.willamette.edu/wucl/journals/wlo/conflicts/surveys/2003.pdf)) See also, recognition of polygamous marriages on the [The Niqabi Paralegal](http://www.niqabiparalegal.com/archives/2003/06/recognition_of.php). 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](http://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](http://djibouti.usembassy.gov/foreign_spouse_visas.html) (”In cases of polygamy, only the first spouse may qualify as a spouse for immigration.”) ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [May 27, 2009, 10:30pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/13 "2009-05-27T22:30:30Z")
> [@Captain\_Amazing](#): > > Well, the big point of the federal DOMA was to make sure that any gay marriages wouldn’t be federally recognized. 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? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 27, 2009, 10:49pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/14 "2009-05-27T22:49:52Z")
> [@Pleonast](#): > > 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. ---
**Author:** ![Fuzzy\_Dunlop](https://avatars.discourse-cdn.com/v4/letter/f/848f3c/32.png) [@Fuzzy\_Dunlop](https://boards.straightdope.com/u/Fuzzy_Dunlop)\ **Post date:** [May 27, 2009, 11:36pm UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/15 "2009-05-27T23:36:04Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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? 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. [QUOTE=Warren] There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. [/QUOTE] ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [May 28, 2009, 9:30am UTC](https://boards.straightdope.com/t/anti-miscegenation-laws-and-full-faith-credit/497812/16 "2009-05-28T09:30:37Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. That’s already started: [State Department offers same-sex benefits](http://www.upi.com/Top_News/2009/05/24/State-Department-offers-same-sex-benefits/UPI-26391243165866/) 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.