Something John Edwards said during the Vice Presidential debate last night struck me as odd. I’m paraphrasing here, but on the issue of gay marriage, he made the comment that in the history of this country, no state has been required to recognize marriages from other states. Maybe I’m not exactly understanding what he was saying, but I always thought marriages in one state *were * generally recognized by other states. I got married in Kansas – if I move to Colorado, I’m still going to be considered married, even though I didn’t get married in Colorado. Did I completely misunderstand him, or is there some subtle nuance behind what he said that I’m not catching?
They are *generally *recognized . . Edwards was pointing out that we don’t need to make a federal case out of the issue, because in the cases where it has come up, states have not been *required *to honor marriages from other states.
While the full faith and credit clause requires states to enforce the records of other states, there is an established exception when doing so would violate the public policy of the state asked to do so.
Hmmm… I wonder how this ties in with the first cousin marrying article of a few days back? Are there any states that de facto refuse to admit other states’ marriage of cousins?
Two principles are involved:
Full faith and credit – a legal requirement, mandated by the Constitution, that the legal acts of one state be recognized, subject to rules which Congress may set, in other states. In other words, if you sue someone for a violation of a contract between you or a tort-style wrong he has done (e.g., you from Georgia and he from Connecticut have an accident. his fault, on the interstate highway, and neither he nor his insurance will pay off the damages he justly owes, you can sue in one state, win a judgment, and enforce the judgment against his property in another state).
Comity – A voluntary “mutual backscratching” between states, where Rhode Island recognizes Wyoming actions in exchange for Wyoming recognizing Rhode Island actions, and so on. Comity is the only principle applying between nations, except for the fact that it may be formalized in treaties.
Comity is, and Full Faith and Credit may be, subject to exceptions created where the act of one state is against the “legitimate public policy” of another. One of the classic situations about this is that the act of a Nevada court granting a divorce is valid in all 50 states, but the judgment of the Nevada court regarding the alimony and child support due in consequence of the divorce is not – each state issues its own decrees as regards its own residents, in this regard.
A Vermont civil union, or (probably) a Massachusetts gay marriage, has absolutely no enforceable status in Oklahoma or Idaho if those states have deemed civil unions or gay marriages to be against their public policy – unless it can be demonstrated in court that that policy is not a “legitimate public policy.” Anti-miscegenation laws, for example, ceased being “legitimate public policy” following the Loving v. Virginia decision, even though the court AFAIK never directly addressed the legitimacy of public policy there, and certainly not the marriage’s “portability” to other states.
OK, makes sense. Now I’m curious how often this issue came up during the days of desegregation and the civil rights movement. Were there states that officially did not recognize bi-racial marriages? Or was it legal but generally frowned upon?
And just to expand on that, it was not just “not recognized”, it was illegal, as in you could go to jail for it, in those states.
And just as an amusing, if somewhat absurd, sidebar here, when Mrs. Kunilou and I got married in 1980, the great state of Missouri was obviously enforcing its anti-miscegenation laws. There was however, still a space on the application that called for the race of the husband and wife. Mrs. Kunilou objected to being classed as “other” so according to a certified officer of the court in the state of Missouri, she’s officially white.
OK let’s say we’re in Alabama before 1967 and they’re enforcing the law agaisnt mixed racial marriages. I understand that were the marriage to be performed there, teh two parties and perhaps teh perforing official could be convicted. But what about an already married couple? Could they be arrested simply for going through the state? That seems unlikely. Wouldn’t the state have to prove they were married to convict them. To do that they’d have to recognize the other’s state’s marriage.
What if they stood in that couple stood in the town square and proclaimed they were married? You’d think free speech would cover that.
The only things I can think that they could actually be arrested for would be (a) fraud – claiming to be married when they wre not and this woudl presumably involve more than just the claim but some gain thereby or (b) fornication – assuming of course the did so in state.
In the case that became the Loving decision, the Lovings got married in Washington, DC (which allowed interracial marriage) and moved to Virginia, where they were convicted of miscegenation and got a year in jail, suspended for 25 years IF they left the state and never returned.
Sorry…that should be “a year in jail, suspended if they left the state for 25 years”.
Ehhh. Obivously no longer enforcing. . .
A very good summary, but I have a quibble with the quoted point.
It isn’t an example of the public policy exception full faith and credit, but of limitations on personal jurisdiction. Lack of personal jurisdiction is another exception to the requirements of the full faith and credit clause. But it arises from the 14th amendment.
I am assuming that you are referring to a situation where one party moves to Nevada to take advantage of its short residency requirements and no-fault divorce laws.
In such a case, the court will grant a divorce, but not issue a decree regarding custody, visitation, support, or poperty division. It can’t enter a valid judgment because, in the hypothetical, the defendant has no contacts with the forum state.
There are federal laws dealing with the proper forum for, and the enforceability of, child custody and child support orders. If the decree satisfies those laws (for example, suppose the divorcing parent took the child with them and remained with the child in Nevada for a year), the order would be enforceable, and not subject to second-guessing by other states.
The general rule is that the state in which the couple is domiciled should decide their marital rights. So most states will simply decline to rule on a divorce where there are insufficient contacts.
And see, http://www.eco.freedom.org/ac92/ac92pg0840.shtml for a discussion of the caselaw on divorce decrees, residency, domicile, in rem and in personam jurisdiction.
A better source for the annotated constitution. . .
A pinpoint citation to the divorce section
a discussion of the other part of personal jurisdiction. Personal jurisdiction is not just a limitation on full faith and credit, it is a due process right.