Full Faith & Credit (Gay Marriages)

Legal question here (can possibly be moved to GQ if it is uncontroversial)

I’ve seen the assertion many times that the “Full Faith & Credit” clause of the Constitution might or would require states to recognize gay marriages performed in other states even if they themselves did not recognize them. This has been suggested in many news articles on the subject, as well as by many Dopers on these boards, and apparently by GWB (in calling for his amendment). Now I see an article in the NY Times in which they quote “legal scholars” as saying that the clause would not have this impact (based on the history of interracial marriage bans). (For some reason they felt the need to frame this as a misunderstanding by Bush, although, as mentioned, the suggestion has been very widespread - perhaps we should file this away for the next Liberal Media thread).

So there are two questions, as I see it:

  1. Who is correct, the quoted legal scholars or the FF&C arguers?
  2. If the legal scholars are correct and FF&C does not apply, why is this so? (The article does not give their reasoning).

My own uneducated thinking on the subject has been that FF&C only means that each state must recognize the authority of other states to conduct itself as a government, but not its authority to create new concepts. So that to the extent that the only thing in question is governmental authority to sanction a marriage, each state must recognize every other state as having that ability. But to the extent that the question is whether the bond in question constitutes a marriage, this is dependent on the laws of each state. So that while a non-recognizing state might recognize the authority of a recognizing state to sanction marriages, it does not have to accept as a marriage anything that the recognizing state chooses to accept. So they would be justified in rejecting the marriage, not based on a lack of governmental sanction but based on the bond not being a marriage at all.

The search function is your friend; this was discussed in GQ just a few days ago: Limits on Full Faith and Credit clause.

I’d pay particularly close attention to the posts by DSYoungEsq and myself.

Sorry, I didn’t see the other thread.

Now that I have you here, could I ask you for a comment as to whether you think the history of interacial marriage proves that FF&C does not apply, as this article states? (I see that someone raised the issue in the other thread, but it does not seem to have been addressed).

Also, WRT to your own posts, might there be some difference between laws (as in “this act is prohibited”, “this heir gets to inherit”) and “acts” and such (as in creating a marriage, or finding that the money belongs to so-and-so)? I don’t know what the precise meaning of “public acts, records” is, but the distinction sounds like a logical one to me.

Absent a fairly radical shift in FFC jurisprudence, I think the article is spot-on in its assessment. There isn’t a definitive answer to your question because AFAIK no one ever challenged miscegenation laws on FFC grounds. However, as I noted in the linked thread, I think the cases that do interpret the FFC clause in a family law context indicate that it would not require state A to recognize state B’s gay marriages.

I think this becomes more clear when you look at a somewhat-plausible but less emotion-filled example. If, for example, Utah were to start blessing polygamous marriages, I don’t think anyone could plausibly argue that the FFC clause would require the other forty-nine states to honor those arrangements.

I don’t think there is a difference. After all, when Congress creates a law, it is called an “act of Congress.” Indeed, in your own example, I fail to see the difference between saying “this heir gets to inherit” and saying “the money belongs to so-and-so.”

One is a general law and one is a legal ruling in a particular case. Suppose a state had a law guaranteeing all the deceased’s great aunts at least 10% of every estate, they could hardly expect another state to abide by this law if that other state has it’s own conflicting laws (unless the great aunts had already come into the money). Your example was a case where one state retroactively recognized an heir and another state did not - how it was ruled would depend on which jurisdiction it was being litigated in.

The other example (“the money belongs to so-and-so”) is an example of a case that has already been litigated in one state and has been ruled on by that state’s courts. Once that is done the FF&C would mean that the loser could not run to another state and insist that the ruling is not binding simply because it was done by the courts of another state - FF&C means that one state recognizes the rulings of another state.

The general principle I’m trying to get at is that one state does not itself go by the laws of another state, but that one state recognizes the acts (whether marriages or court rulings) of another state. I hope this makes sense.

It seems to me you are on the right track. But I also think everyone has failed to take into consideration the issue of jurisdiction. If we ignore the pre-civil rights cases that penalized interracial marriages and focus on modern legal trends, then it appears that while one state may refuse to grant marriage liscences to same sex couples, they cannot refuse to recognize a duly recognized marriage from another State.

That is not to say that they could not create laws that treated same sex couples differently. Sexual preference has yet to be defined as a protected class, therefore any discriminatory laws will be judged according to the Rational Basis standard. Rarely does a law fail this standard. (NB if marriage is determined to be a fundamental right (or as Justice White would have said, if GAY marriage is a fundamental right) then the previous argument is wrong because in that case the appropriate standard of review will be Strict Scrutiny)

While a State may have to recognize the marrital status, it can not be compelled to grant the same rights that the couple is entitled to in their state of origin. An example of this is the different rights accorded to spouses in Community property versus Common Law states. They both recognize the validity of out of state marriages but grant different rights. This is all new territory in the legal arena. One persons guess is as good as anothers. The only thing that is certain is that with the current makeup of the Supreme Court, things do not look as bright as they seem for proponents of SSM.

I hope I am wrong, but I have seen Rhenquist pull more than one rabbit out of his hat, especially with Scalia and his (I can’t think of a race neutral insult) Thomas. Add to that this is not a womens issue so O’Conner will not support it. Finally the fifth and deciding vote against SSM will be Kennedy. :frowning:

One must keep in mind discussing this issue the reason it might come into play. We must divorce the effect of the Full Faith and Credit clause on same gender marriages from the constitutionality of legislation denying same-gender couples the ability to become legally “married.” The context determines the reasoning to apply when looking at the clause.

We assume that the question of “full faith and credit” arises because a couple, married in state A under a legal license, move to state B and attempt to invoke their “status” as entitlement to one of the benefits conferred upon married people by state B. For example, perhaps John and Jack attempt to file a joint tax return, or John dies and Jack wants to inherit, or Jack files for divorce, and requests division of property under state B’s laws. State B’s officials and/or courts refuse to acknowledge the status purportedly conferred upon them by state A; perhaps there is a statute similar to California’s which precludes considering any same-gender marriage valid. Jack and John file suit, requesting a declaration that they are entitled to the denied benefit, and put before the court the certificate of marriage in the manner required by 28 U.S.C. §§1738 et seq.

What does the Constitution require the court do? Clearly, the court must acknowledge the fact that state A has issued a public “record” stating that the couple are “married.” But that does not mean that state B must constitutionally confer upon the couple the same status. Attorneys licensed by state A are not required by the constitution to be allowed admittance to state B’s bar. Nor is a contractor licensed by state A ipso facto entitled to do contracting work in state B. Indeed, a state B is not required to treat a person convicted of a felony in state A as a felon, or even as someone convicted of a crime (Nelson v. George, 399 U.S. 224 (1970)). It would be difficult, in light of this, to see the clause as requiring that state B treat the couple as “married,” simply because state A declared them to have that status.

Which makes dealing with the questions raised by IzzyR easier. “Public Acts, Records and judicial Proceedings” Are easily understood, being terms of art; as Dewey Cheatem Undhow points out “acts” is meant to cover the actions of the state through its legislature and executive. “Records” are obvious; Congress has set forth the means by which the existence of a public “record” can be proven as the language of Article IV, Section 1 allows. Knowing which it is that a person is utilizing to support the request made in the courts of the forum state helps understand what the clause will require. Judgments are treated with the most respect, and yet a forum state will not be required to accept all aspects of even a final judgment, as seen above and in the divorce cases, which allow a forum state to retain control over disposition of real property located in the forum state, at least when only one of the couple has appeared before the courts of the sister state. Acts of a sister state will be enforced usually in situations where the relationship of the parties before the forum state court is determined by the foreign law, as when shareholder suits are involved. But in same-gender marriages, the issue isn’t the judicial prceeding of state A, or even the act of state A, but rather the record of state A, which declares the couple to be “married.” What effect that has in determining the treatment received from state B is as yet undecided by the Supreme Court, but given the trend of the law on the subject, it would be hard to see how it could go in favor of forced recognition.

Keeping these issues separate is essential. askeptic’s discussion shows the difficulty in doing this; one can imagine that there would be outrage among some gay groups should the Court refuse to force application of the Full Faith and Credit clause in this fashion, when in fact the issue that should raise their ire would more correctly be the failure of the Court to treat laws discriminating against homosexuals as inherently suspect, requiring that they clear substantially high hurdles in order to receive constitutional blessing.

All due respect, but I would hate to see the response of a judge to whom you submit a brief containing the word “Clearly” or the phrase “Ipso Facto”.

You state that :

While I do not disagree on principle, I must ask what constitutional basis is there for finding discrimination against homosexuals as inherently suspect? Homosexuality has yet to be designated a protectected class.

Recording issues in my opinion are red herrings. While a state can prevent an attorney from another from practicing law it cannot declare that he is not an attorney.

All due respect, I’m guessing you don’t see a lot of legal briefing. Such phrases are perfectly ordinary, and perfectly appropriate if not overused.

What is this “declare” of which you speak? The point is whether the state is obligated to treat the out-of-state attorney as an attorney in its own courts. I absolutely guarantee you that if I attempt to practice law in Louisiana, I’m gonna get popped right quick for unauthorized practice.

just finished a response to your comments. freakin gremlins ate it. I won’t retype it all. The gist was that I was suffering from tunnel vision as a result of a local Fed Judge who has a habit of excoriating attorneys who use superflous language. You are absolutely correct in stateing that such wording is all too common.

Also ofcourse unless admitted to a states bar or pro hoc vice any attorney is subject to sanctions for the unauthorized practice of law.

The point I was trying to make is that there is no constitutionally protected class based on sexual preference. Not that their should not be just that as of yet ther is not. That I feel that while FFC may require other states to recognize ssm, it may be permissable for them to pass laws restricting the rights availible to those couples. FFC clearly does not impose on states the burden of extending the same rights the granting states do.

Can they refuse to recognize a duly-issued medical license from another state (yes)? After all, the marriage is recognized via a “license”.

The matter is not cut-and-dried.

FFC is not uniformly applied in the present day.

When I was a law clerk, my supervising attorney used to dictate letters responding to correspondence as he was reading the correspondence; he knew his files so well he didn’t usually need to pull them for reference. Sometimes, my boss, who had an excitable nature, would dictate a response influenced by his pique over the contents of the correspondence he was reading. When he was done, his secretary (a nice, competent, practical type) would set the tape aside for two days, then type up the contents in rough draft and quietly lay them on the desk for his review. With some perspective, he would just as quietly tear them up and ask for the file so he could dictate a more prudent response. This was a wise practice.
To address your legal points:
Homosexuals are not explicitly declared a “suspect class” and I never said they were. What I did say was that gay groups should be upset that that is true, not that “full faith and credit” doesn’t work to allow a valid same-gender marriage in Oregon to be a valid marriage in all 50 states. After all, the full faith issue would evaporate the instant that the Court does establish that homosexuals are a protected class, and that states can’t invidiously discriminate against them without passing some form of enhanced scrutiny. Apparently you failed to comprehend that this was the thrust of my comment.

As to the actual full faith and credit issue, your claim that “recording issues” are “red herrings” shows that you don’t fully comprehend the effect of the clause. It is not possible to use a rubric regarding “status” vs. “effect” to decide full faith and credit cases. Indeed, the example you gave in your last post,

shows that this is a distinction without meaning. “Status” by itself is meaningless. The fact that I am an “attorney” in California cannot be denied by Oregon, but I am not an “attorney” in Oregon, merely a lawyer who best damn well not be practicing law there. Similarly, if a same-gender couple marry with valid license to do so in Oregon, and then move to Utah, to note that Utah cannot deny that the couple is considered “married” in Oregon is irrelevant to the important issue; are they considered “married” in Utah, and, thus, entitled under Utah’s statutes to preferential treatment, access to divorce actions, etc?

Further, “status” isn’t even handled the same way by application of the Full Faith and Credit clause in all cases. Shareholder status will be determined by the law of the state of incorporation, for example, but employee status will be handled by the law of the forum state. Pickle sharecroppers might not be “employees” under the law of some states, but California will damn certain treat them as employees, and the Supreme Court would not require otherwise, as evidenced by the Court’s rulings on workers’ compensation cases. Trying to apply a rubric based on “status” doesn’t work.

The best way to look at the Full Faith and Credit clause is to start with the assumption that a state is a sovereign, entitled to make its own decisions regarding legal issues presented to it. Over the course of the three or four centuries prior to adoption of the Constitution, English courts had developed a comprehensive body of law to determine when out of comity, the law of some other sovereign would be considered dispositive of an issue. It was this legal concept, and the body of law accompanying it, that the Full Faith and Credit clause attempted to enshrine in the Constitution. It was an understanding that it would be inimical to the interests of the Union if states could engage in spiteful rejection of the acts of sister states for a reason other than the valid exercise of sovereignity. The situations in which lex fori cannot constitutionally be applied over lex loci are limited and rare; a state out of its own interpretation of comity can expand on them, but is not required to do so by Article IV, Section 1. Based on decisions issued by the Supreme Court to date, it is unlikely that same-gender couples can use the clause to force state B to apply its rights and privileges granted to married persons to same-gender couples validly married under the laws of sister states.

And while it is not part of the official thread here, I’ll just comment, in response to some assertions made regarding how the Supreme Court would rule regarding the constitutionality of laws preventing same-gender marriage, that I wouldn’t be so certain such laws wouldn’t be stricken down. Justice O’Connor made it clear in Lawrence that she sees homosexuals as being entitled to a higher level of scrutiny; Justices Rhenquist, Scalia and Thomas are adamant that they are not so entitled; precisely where Justices Kennedy, Stevens, Souter, Breyer and Ginsburg stand is unclear. One presumes that the failure of these justices to issue an opinion stating that laws discriminating against homosexuals should be entitled to a higher scrutiny than “rational basis” must mean that some 2 of them don’t agree; and the exact same division existed in Romer v. Evans, 517 U. S. 620 (1996), although there Justice O’Connor didn’t bother with a tilt at the windmill. Suffice it to say that six justices don’t like blatant discrimination against homosexuality, even if they haven’t yet agreed among themselves exactly how to frame review of the issue.