Thinking about all the hullabaloo about gay marriage got me thinking about the full faith and credit clause of the Constitution.
It seems to me that there are limits to the clause. IIRC, lawyers have to get special permission to practice law in other states, so it seems that states are not automatically required to recognize the membership of other states’ bars.
I’ve heard that concealed carry permits are not automatically respected in other states.
I rather doubt that this clause of the Constitution compels states to allow very young drivers – say, 14 or 15 years old – who are licensed in one state to take to the roads of their own states, where the minimum age for driving might be 16 or 16.5.
So, the question is: is there any principle which limits the application of the full faith and credit clause for these cases that I’ve noted, or is the FFC clause being unconstitutionally ignored in such examples?
Also, is there any examples of a state being able to reject recognition of a marriage performed in another state, and that rejection not being viewed as unconstitution under FFC? (I’m thinking something like a state not recognizing a marriage between children, some aspect of the performance of the marriage ceremony being improper, or something along those lines.)
(I hope I’ve constructed that last question to veer away from GD territory. Reminder, I’m specifically asking about how this clause of the Constitution has been interpreted in the past.)
So, it doesn’t apply to the things you noted. Those are not public records.
That being said, there was a recent court decision that held that a state need not give full faith and credit to another state’s action if it is against the public policy of the state. If a state passes a law to that effect, it appears that since that is the stated policy of the state, it need not give validity to marriages between homosexuals.
It means that one state can’t outlaw another state’s law, basically. It was big deal during slavery.
As far as certain marriages are concerned, though, it doesn’t matter in this case because it prohibits states, not the federal government, which has already passed a “defense of marriage act” (I think – am I wrong?) that applies to the states.
You are dreaming if you think a license to drive is not a public record. Same for gun permits. And it might help in answering a question regarding the Constitution if you actually quoted some true constitutional law.
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2. The Full Faith and Credit Clause Doesn’t Force Acceptance of Marriages Valid in One State by All Other States.
I know this particular straw man is the focus of much attention as the reason to have a federal constitutional amendment. It was the basis for the Defense of Marriage Act. And the concept that, should one state allow “gay” marriages, all other states would have to accept them is bunk. That’s a technical term we lawyers use for stuff that is without merit.
Cases addressing this section make a division between situations where the courts of a state are asked to apply the judgment of the courts of a sister state from situations where a state is asked to apply the “public Acts” and “Records” of a sister state. In general, where there is no prior judgment, the currently accepted general rule is that the forum state must apply the “foreign” law, subject to its own interest in furthering its own public policy. As the Supreme Court stated it:
To date, no cases regarding the effect of a marriage in one state not recognized as valid by another state have issued from the Supreme Court. There is a commonly stated old maxim of law that marriage in one nation will be recognized in another nation; this is part of a body of law termed “private international law,” or, if you will, “conflict of laws.” However, some other such maxims of “conflicts” have been modified by the Court in applying Section 1 of Article IV, especially where contractural issues have been involved. So it is hardly clear that the Constitution requires that State A provide benefits, say, based upon a claimed marital relationship entered into in State B, impermissible in State A. I made that conclusion with respect to this very issue five years ago in this thread, and I’ve seen nothing in the interim to make me change my mind.
To deal with the concepts raised in the OP regarding licenses and such, keep in mind that one has to understand the context within which the issue of Article IV, Section 1 would be raised. Let us assume a person licensed to drive under the laws of state A, but unable to be licensed under the laws of state B. The reason doesn’t matter. Our hypothetical person attempts to drive a car in state B. He is pulled over for some reason, produces his license in state A, but it becomes apparent from the face of the license that he is not qualified to drive in state B. He is ticketed for driving sans a valid license. He asserts at trial on said infraction that he has a license from state A, and state B must give full faith and credit to this license. How is this resolved (make the assumption for this hypothetical that state B does not automatically grant the privilege of driving to anyone licensed by another state, who is not able to be licensed in state B).
The answer becomes trivial. State A has licensed our person to drive in state A. This is the extent of the license. State B can give this “full faith and credit” without dismissing the charge, because the license to drive in state A is not a license to drive in state B. The license in state A would only have value in state B if the issue before the court were “is Person licensed to drive in state A.” In such a case, the court would not be able to deny the existence of the license in state A; one can perhaps concoct some sort of hypothetical in which this would be the dispositive issue.
How, then, does this apply to the marriage issue. Marriage is a “status” which people carry with them even when they leave the jurisdiction within which the ceremony took place. Let us assume John and Jack get married in state A. They then move to state B, and assert that they are married when filing state income tax returns. State B’s laws do not allow John and Jack to get married in state B; can they nevertheless claim the status of being married, pointing to the public record of state A? Unlike the license to drive, limited in its effect, this is an issue of a status that is not intended to be limited. In such a case the answer is NOT trivial; it is so far untested in court cases at the appellate level to my knowledge.
For an example of how the Supreme Court might rule, one can review the workers’ compensation cases, on which the Court has been all over the place.
DSYoungEsq: Your post is remarkably clear and is the first fully cogent exposition of the matter I’ve yet seen. Kudos.
Now, for a bit of a hypothetical: Suppose state B promptly arrests John and Jack when it learns that they claim to be married. Under state B law in this scenario, it is not only impossible for a same-sex couple to be married, but a same-sex couple portraying themselves as being married on official documents has committed a felony. Is this already the case in some states? Is this trivially covered under your earlier post (that is, it would end up before SCOTAS), or is there another principle at work?
(I suppose the notion of state B expressly commissioning bounty hunters to go into state A and bring back same-sex couples to stand trial in state B is absurd. But, in this benighted age, it seems all too probable.)
I’ve asked this question before and never really gotten a satisfactory answer so I’m hoping maybe this thread will be a good vehicle.
Yes, there is case law that Stae B doesn’t have to recognize State A’s stuff under FFAC if the stuff from State A is against State B’s public policy. My question is, to what standard of review is State B’s public policy held?
Just to get **Otto’s ** question on the front burner again, IMHO, I would surmise that the state’s position as to what is against its public policy is the reasonable man criterion. If the state were to enact legislation, which legislation appears reasonable, I would hazard a guess that the courts would acknowlege the validity of that policy.
What about precident? I know many Southern States and some Northern ones too, banned interracial marriages. When and how did those acts get thrown out? What was the position if a black and white person got married legally in one state and it was banned in another?
Could their be a relationship to divorce. For instance Nevada got famous by allowing divorce after only six weeks of residency. Were the divorces recognized in other states?
A warning in advance for Otto; I don’t think the Court has a clear idea just how to review these cases. If you want a night of “entertaining” reading, just take a look at the Court’s approach to workers’ compensation benefits, which end up discussed because most states usually provide that their benefits are exclusive of any other benefits, but many states allow claims for injuries happening outside the state occurring in the course and scope of employment entered into within the state. If I recall correctly, the Supreme Court has revisited this issue at least four times in the last quarter century or so, never with quite the same result.
As for the difference between marriages and divorces, just remember that a divorce is a final judgment to a legal proceeding, so it is handled under the rules applicable to enforcement of judgments in sister states, a far more rigorously strict application than is the case with “public acts and records.”
But that exclusion has no bearing on federal benefits. One who receives worker’s compensation benefits can also receive Social Security disability benefits. There is an offset, but additional benefits are not precluded, as long as the totality doesn’t exceed 80% of the worker’s salary before he was disabled.
The following is a bit of recycled research from an earlier thread where this topic arose:
The FFC clause has its limits. No state is required to extend full faith and credit to laws of other states when doing so would abridge its own public policy interests. See, e.g., Nevada v. Hall: “[T]he Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy.” The definition of marriage is one such legitimate state public policy interest.
Hall doesn’t deal with family law, but it is a clear statement of the rule in play. And the courts have consistently held that the FFC clause doesn’t apply to many facets of family law. See, e.g., Estin v. Estin (state may continue enforcing support order even after an out-of-state divorce purportedly terminated it), Olmstead v. Olmstead (state need not honor another state’s statute legitimizing children born out of wedlock), and Hood v. McGhee (state need not respect another state’s adoption proceedings in determining land inheritance).
Put simply: if, say, California decided to recognize polygamous marriages, the Constitution would not require the other 49 states to honor those arrangements.
Now, Otto will turn around and point out some cases mandating under the FFC clause the recognition of divorce judgments. And he’s right to do so. However, I think those cases are distinguishable for essentially the same reason proffered by DSYoungEsq – they deal with final judgments by courts.
Sometimes I don’t think you really comprehend what you read, barbitu8.
The issue in the workers’ compensation cases is whether or not the benefits that will be paid to an injured worker will be paid under the law of state A or the law of state B. Suppose, for instance, an employment contract entered into in California, with injury occurring in Nevada. Does the fact that benefits are paid under Nevada law preclude the payment of benefits under California law, when those payments would be forclosed by receipt of the payments made under Nevada law? Federal benefits aren’t the issue, weren’t mentioned, and have nothing to do with the Full Faith and Credit issue. Besides which, the federal benefits aren’t being paid as a result of having been injured on the job, so the “exclusion” rules wouldn’t apply anyway. :rolleyes:
Actually I wasn’t going to turn around and point out any cases (although one of your own cases, Olmstead, seems to contradict your point). But I will point out that it still doesn’t quite make sense to me that public policy is sufficient to overcome the exercise of a fundamental right.
I’d be curious to know why you think that. Olmsted held that the FFC clause would not force New York to honor Michigan procedures for legitimizing children in disposing of property in New York under a New York will.
The facts were as follows: Testator leaves a 1/2 interest in New York land to Z’s “lawful issue.” Z has two children from a first marriage (A1 and A2). Z then takes up with another woman in New Jersey, tries to marry her without geting a divorce from wife #1 (thus making the second marriage null). He has two more kids (B1 and B2) with this second woman. Z then moves to Michigan with his new wife and kids, finally secures a divorce from wife #1, and repeats the marriage ceremony to make the second marriage nice and legal.
Michigan had a law that legitmized the children of the second marriage, including retroactively vesting them as lawful issues for inheritance purposes. New York’s legitimizing statute did not have that retroactive provision. The issue was whether Michigan’s law, by virtue of the FFC clause, would require New York to allow B1 and B2 to collect under the will (something A1 and A2 obviously were not keen on seeing happen).
The court held that the FFC clause did not require such reocognition of anolther state’s legitimization law. That is, whatever property rights B1 and B2 had in Michigan by virtue of Michigan legitimization law, those rights were not transferable to New York via the FFC clause.
So, again, I’m not sure how you can say the case contradicts my point. It limits the scope of the FFC clause in an important area of domestic relations. Which was my point.
As DSYoungEsq asked: what fundamental right? If there is a fundamental right at stake, then no state can have a law that violates it. It is thus impossible for the FFC clause to be triggered in the first place. If the federal constitution mandates gay marriage as a fundamental right, then Alabama cannot possibly fail to recognize California gay marriages because Alabama itself will be forced to permit gay marriages for its own citizens.
I don’t remember the cases (and I can’t easily look them up at the moment), but I seem to remember from Family Law that the state’s public policy had to be “important” to override FFC. In particular, I remember cases holding that 1st cousin marriages (performed where legal) had to be respected, but an uncle-niece (or maybe granduncle-grandniece) marriage did not.
Sorry, but I was busy this weekend with painting, Die Siedler von Nürnberg, Rails Across America, the Manchester Derby, and the 2004 Brier. Full Faith and Credit got pushed aside (those damn competing memes, you know?).
There really isn’t a Full Faith and Credit issue here. The question such a hypothetical poses is whether or not State B can criminalize a status entered into legally in State A (or the assertion of such status, in your hypothetical). But Article IV, Section 1 (and, btw, section 2 as well) is about “comity” and “choice of law.” When a conflict needs to be resolved between two parties in State B, and one of the parties has pointed to an act, record, or judicial proceeding of State A as having an effect on the outcome of the conflict, does State B dispose of the conflict on the basis of the referred to Act, Record or Judicial Proceeding? In your hypothetical, John and Jack are offered no help by the marriage legally entered into in State A, for the only question posed is, have they violated the law of State B If they assert that they are validly married under the laws of State A, it avails them not, for State B has not provided an exception for valid same-gender marriages.
Assuming a slightly different hypothetical puts us right back where we were with my first post. If State B asserts that it is a crime to refer to an invalid marriage on an official document, but does not specifically assert that same-gender marriages are invalid, then Jack and John can assert as a defense the legal marriage entered into in State A, and State B will then have to determine if it must, or if not, will concede the existence of a valid marriage. The “must” part of the above refers to application of the Full Faith and Credit clause. In dealing with this issue, the courts of State B would have no Supreme Court of the United States cases directly on point to utilize, as we have seen.
This is not meant to imply there are no constitutional questions involved. One might make a case of violation of the Fourteenth Amendment by State B’s attempt to criminalize a legally valid marriage entered into under the laws of State A. But that is irrelevant to the issue presented in this thread.
There isn’t a “standard of review” at issue here. Rather, the question is more properly put as, “what test shall be applied to determine if the law of the forum state will be applied in the face of arguably controlling foreign state law?” The answer is that there is no certain test developed; case law on the subject has never managed an easily applied rubric similar to “strict scrutiny.”
First, remeber in addressing the issue that the underlying basic question is properly phrased as follows: “Is the law of the forum state (lex fori) applied to resolve a dispute when one of the parties asserts that an act, record or judicial proceeding of a sister state is dispositive of the issue?” Obviously, if there is no different result that obtains, the issue is mooted. And we have seen that where a prior judgment from a sister state exists, a relatively strong policy in favor of recognizing that prior judgment exists, although even that is not universal; see the divorce cases. In cases without a prior judicial judgment, the forum state is often allowed to apply its own law in the face of contrary acts or records from sister states.
The issue was reasonably well covered by common law prior to 1787. There were rules which applied to contracts (lex loci contractus applies, absent indication of contrary intent by the parties), immovables (real property,etc., disposed of according to lex rei sitae), chattels (lex domicilii applies), etc. Although the framers obviously intended to elevate the concept of “comity” between the sister states to a higher level of obligation, the Supreme Court has never held that a state must yield up its territorial sovereignity in disposing of disputes, and for most of the first 100 years, cases involving a “conflict” of laws were decided by common law principles.
Cases in the last 100 years have raised issues unable to be handled by common law rules, mostly because states have attempted to address through legislation issues of social and business importance, without uniform result. Thus, when looking at the cases decided on the basis of the Full Faith and Credit clause, we see a spate of decisions regarding how to treat corporations in general (early to mid 1800’s), wrongful death actions (1880-1900), stockholder suits (1910’s to 1930’s), “fraternal benefit societies” (a form of insurance popular in the early part of the century), workers’ compensation actions (1930’s), etc. The most recent spate of case law came in the period 1979-1985, and has not been revisited since, as near as I can determine. Partly, this is because the cases in the '80s started merging the issue with “due process” law, leaving everyone thouroughly confuzzled about where to go next.
But the “test” can be traced as follows: Common law established that the lex fori applied whenever the policy or local interests of the forum state required that it be applied. Quoting from an early case, Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839)
A famous early application of this principle occurred in Scott v. Sandford, 60 U.S. (19 How.) 393, (1857) (Dred Scott), where the Court at page 460 reasoned that Missouri’s law under which the petitioner was a slave could not be forced aside by reference to Illinois’ law under which the petitioner was considered free while in Illinois. But the Court in these and other cases made no direct reference to the language of the Constitution in Article IV; it appears that they considered Article IV to be a restatement of the common law on “comity.”
In 1887, the Court first specifically held that a public act from one state had to be given the same effect by the court of another state as it would in the first state Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887). This was nothing more than a further application of the same principle found in the Bank of Augusta case, for in each case, the decision was to apply the law of the state in which the corporation existed to determine the legality of actions by the corporation in a sister state. By 1935, the Court was applying a balancing test, in which the forum state’s interest in applying its own laws was presumed paramount, and the party attempting to refer to a competing law or record had to establish that the interests of the foreign state were superior to the interests of the forum state (Alaska Packers Assn. v. Comm. 294 U.S. 532 (1935)). Indeed, through much of the mid-part of the century, there was little effort to limit the ability of a state’s courts to apply lex fori unless the issue revolved around the contractural obligations or corporational powers of a company existing or contracting in a separate state. A good summary of the law up to 1955 can be found in Justice Frankfurter’s dissent in the Carroll v. Lanza, 349 U.S. 408 (1955) case.
Which brings us to the present. What test now exists? Most commentators state it as requiring the forum state have an aggregation of contacts such that application of the lex fori is not arbitrary or unfair. This follows language from the case Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981). But it isn’t so easy to accept this as an accurate restatement. For one thing, the concept thus latched onto was found in a plurality opinion by Justice Brennan, in a case divided 4-1-3, applying Minnesota law to a suit on an insurance contract made in Wisconsin, for an injury occurring to a Wisconsin resident who was employed in Minnesota, but not on his way to work there, filed by a surviving spouse who subsequently moved to Minnesota, and wanted Minnesota’s more liberal law on insurance recovery to apply. Although the language in this opinion by Justice Brennan was later quoted in a majority opinion in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), where Kansas was precluded from applying lex fori to a class-action suit brought by lessors of gas rights, only some of whom lived in Kansas, or owned property located in Kansas, against an oil company which had delayed payment of royalties, no attempt was made in either case to separate the “due process” issues from the “full faith and credit” issues. In both cases, Justice Stevens attempted to separate the due process considerations from the full faith and credit considerations, and in both cases he was a minority of one. But while the test Justice Stevens would apply may not have been adopted, the history he relates cannot be dismissed so out of hand.
What are we left with? At present, based on the most recent results, application of the Full Faith and Credit clause to situations where no prior judgment has issued can be summed up as follows: A corporation will be bound by the law of the state in which it incorporates as setting forth its powers, and defining the relationship of itself with its stockholders, but cannot rely on the law of the state in which it enters into a contract with another person governing any dispute that arises under the terms of the contract; where the forum state has an important interest in seeing its own law applied, it can be. A worker can receive benefits under the law of either the state in which he/she was injured or the state in which he/she contracted employment, regardless of whether either state has an exclusionary restriction on provision of benefits, unless the forum state has not either directly or indirectly expressed that it has an important interest in application of its own laws (and, frankly, the case with this exception, Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932) should probably no longer be considered good law, it has been ignored or distinguished so often in the years since). The law of the forum state will be applied to procedural aspects of litigation between parties in wrongful death tort suits, but a the forum state’s courts cannot refuse to entertain a wrongful death action authorized by the laws of a sister state which would allow such a suit in that state, when a party files in the forum state instead. Whether or not all of these situations can really be summed up under Justice Brennan’s “aggregation of contacts” rubric is open to discussion.
In applying this to same-gender marriage, one can hardly come up with a definitive result. Often the trouble with these balancing type tests is that the proper weight to be given each side is in the eye of the beholder. Or, as one commentator puts it, “Obviously this doctrine endows the Court with something akin to an arbitral function in the decision of cases to which it is applied.” (Analysis and Interpretation: Annotations of Cases Decided by the
Supreme Court of the United States, Prepared by the Congressional Research Service, Library of Congress, 1992 ed.) One can easily see, however, that a neutral observer could conclude that a forum state would be able to argue substantial policy interest in being able to govern the status of marriage within its own borders. Such a policy interest would be at least as great as the interest in providing for proper compensation of people injured within its borders. On the other hand, given that courts of a forum state are currently required to accept the judgment of divorce recieved from a sister state (although still being allowed to dispose of real property within the state according to its own laws where the domiciled spouse was not served or present in the state in which the proceeding took place), it is hard to argue that the forum state has any greater interest in refusing to accept the entering into marriage of a couple in a sister state.
One thread that has wound through all the cases can be discerned, I believe. In none of the cases has a state been forced into application of its own law in a way contrary to its own stated interests. Full faith and credit has required application of foreign state law only where the parties have at issue whether or not the obligations of their relationship should be determined under the law of the foreign state. In the case of same-gender marriage, the issue would arise presumably because the married people would assert entitlement to a right in state B to which they would not be entitled because they could not attain the status of “married.” I do not think that, absent a determination by the Supreme Court that laws denying the status of marriage to same-gender couples are unconstitutional, states will be required under the Full Faith and Credit clause to allow couples to obtain what they could not obtain under the laws of the forum state.
As a side note, I have purposely refused to discuss the import of 28 U.S.C. §1738C. Although there is some loose talk in Supreme Court decisions about the ability of Congress to control the application of the statute of one state within the boundaries of another, I do not read the language in Article IV, Section 1 regarding Congress as doing more than allowing Congress to set the way in which the Acts and Records can be proven; I do not believe the founders intended to endow Congress with the power to decide the meaning of “full faith and credit.”
