Let’s say that Florida and Georgia both issue widget possession permits.
Recognition: Florida says that they will honor Georgia widget permits, Period. No further conditions.
Reciprocity: Florida says that they will honor Georgia widget permits, ONLY so long as Georgia honors Florida widget permits. When Georgia agrees they have a reciprocity agreement.
I don’t think this is correct. Apart from the extradition clause, there is no requirement that a state punish you for criminal acts committed in another state.
Requirement? No. But it’s sound public policy.
The “full faith and credit” clause of the Constitution is not absolute. If gay marriages are against the public policy of the state, the state has a compelling interest in not recognizing it. Unless a state has a compelling interest contra it must recognize a decision of another state.
Quoting from a case I remember; Nevada v. Hall;
(c) The Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy. Pacific Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493.
The Pacific Employers decision says that the Full Faith and Credit clause does not require one state to enforce the laws of another state. So one state doesn’t have to perform same-sex marriages just because another state allows them to be performed. But while the legalization of same-sex marriage is a law, the marriages themselves are matters of public record - there’s no public act involved with each ceremony.
So while states may argue they aren’t required to enforce another state’s laws they are required to recognize another state’s records. Public acts are not the same as public records. Texas cannot refuse to recognize a marriage performed in Massachusetts and Massachusetts cannot refuse to recognize a marriage performed in Texas. To claim otherwise would be to say that the marriage laws of one state can overturn the marriage laws in another state - that a Texas law can declare that marriage performed in Massachusetts is invalid. This is the exact opposite of what the Pacific Employers decision said.
If we look at the language of the FFC:
…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…
So Congress, per the FFC, can decide what records must be recognized by other states.
This is the argument, at least one, of the Constitutionality of DOMA.
The SC has already ruled that a state prohibiting same sex marriages does not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
The issue of DOMA has never been ruled on by the SC in terms of the FFC.
This case I remember from past research.
Loughran v. Loughran, 292 U.S. 216 (1934)
CERTIORARI TO THE COURT OF APPEALS
OF THE DISTRICT OF COLUMBIA
Syllabus
So, past decisions on marriage indicate DOMA would survive, IMO, but the SC can rule anyway.
As Justice Jackson said;
“We are not final because we are infallible, but we are infallible only because we are final”.
As you note, the Supreme Court has not issued a ruling on whether the Defense of Marriage Act violates the Full Faith and Credit clause.
You seem to be making the argument that DOMA must not violate the FFC clause because the Supreme Court hasn’t said it does.
I (and others) would make the counter-argument that the Supreme Court’s unwillingness to rule on this issue is a recognition that DOMA does violate the FFC clause. Justices on the court realize that, as judges, they would have to declare DOMA unconstitutional if they ruled on it and that, as individuals, they wouldn’t like that outcome. So they’ve intentionally left DOMA’s constitutionality on FFC grounds in a legal limbo (while being willing to issue rulings based on other grounds).
In defense of my position I’ll offer that lower courts have ruled that DOMA violated the Full Faith and Credits clause. And that Congressional supporters of DOMA attempted to enact the Marriage Protection Act which would have prohibited courts from making rulings on the constitutionality of DOMA - in my mind, an admission that they realize DOMA is constitutionally vulnerable.
No, that is not what I am saying. I said IMO DOMA would be found not to violate FFC when and if heard by the SC, just a prediction on a potential case like anyone would have.
A possibility. As we saw in Baker v. Nelson, instead of a direct opinion, they let it stand as a “summary decision”, and dismissed it for “want of a substantial federal question”, imo, causing a rift in how courts could/should apply it’s precedence?? Most from what I read apply it as binding on them.
I can buy that, but party line votes are always just politics in my mind, so it’s hard to say.
Some years back, don’t know if you remember this or not, Congress passed a law that said no federal district court could entertain a Habeas Corpus Petition filed by an enemy combatant or such. Don’t know how that came out.
Are you talking about the Military Commissions Act of 2006? I believe the section prohibiting Habeas Corpus petitions was overturned by Boumediene v. Bush.
Yeah, that’s he one, thanks!