Are there any states that refuse to host SS marriages, but DO honor ones performed in other states.
Kentucky. As of today, actually
Here you go: Same-sex marriage in the United States - Wikipedia
(My bolding.)
TY Susan. Forgot wiki.
I knew that page existed, which made it easy to find.
They’re all Constitutionally required to, under the Full Faith and Credit clause, but that seems to have been forgotten of late.
That’s not now nor has it ever been true.
Marriage recognition used to be the literal textbook example of Full Faith and Credit, until gay marriage became an issue.
It seems to me that the Supreme Court needs to address the question of whether states are bound under the Full Faith and Credit clause to recognize SSM and one of these decisions (like Kentucky or Virginia) ought to be heard at the Supreme Court. (It would be slightly amusing if it was a case from Virginia that decided it, since Loving vs Virginia was the one that decided interracial marriage.)
Show me the textbook. FFC has never been used to require a state to recognize a marriage created elsewhere. States recognize other states marriages as an operation of state law, not the FFC.
Divorce, on the other hand, is the textbook example of Full Faith and Credit, but there difference is substantially more than semantic.
Yesterday, the SPLC (Southern Poverty Law Center) announced a lawsuit challenging Alabama’s anti-gay-marriage law and amendment. Given the result of the Kentucky lawsuit, it would not surprise me if they succeed. It’ll take a while to play out, and I’m sure Alabama will fight it to the bitter end, but I’m hopeful. So, it doesn’t go on the list yet, but it may get there.
Did you perhaps mean to say “until interracial marriage became an issue”?
Cos IIRC, FF&C wasn’t the deciding factor when the Lovings prevailed over the Commonwealth in the SCOTUS.
You recall wrong. Full Faith and Credit is never mentiond in the Loving decision. The Lovings won on equal protection and due process grounds.
When interracial marriage was an issue, its opponents talked a lot about the “public policy exception” to FF&C. That exception didn’t exist then, and still doesn’t now.
Well, the public policy exception (as far as I know) comes from a 1939 decision on workers compensation (citing to decisions as early as 1918). So, there’s been a public policy exception for some time.
But that doesn’t matter, becuase, your ipse dixit aside, FF&C has never been applied to marriages. And it doesn’t take a whole lot of analysis to realize why not: it quite clearly does not apply and even if it did apply, the Constitution gives Congress the right to specify when it applies, and they did that.
It’s not clear to all of us. Little help?
Same?
No problem.
The Full Faith and Credit clause (and it’s really not a “clause”) states:
So, you begin at the beginning. Is “marriage” a “public Acts, Records, and judicial Proceedings"? Well, it’s not a public act (i.e. a law) and it’s not a judicial proceedings. So is it a public “record”? That’s not clear. There is some authority for the view that that means “court records.” (For example, 28 U.S.C. 1738, which is the general enacting statute, refers to “records and judicial proceedings of any court” and then “such records”). Is marriage a record of a court? Maybe. Your marriage certificate is often filed with the clerk of court, but not always. At best, what is a court record is a record of the solemnization of your marriage. Your marriage is a legal status that arises out of that.
Whether that’s a distinction with a difference doesn’t matter. Because the next question is: what is the effect of this record? Again, under the statute, the provision requires that the record has the effect “as they have by law or usage in the courts” of the receiving state (you can see that we’re primarily concerned with proving things in court, here.). There is a significant disagreement over whether the FFC operates simply as an evidentiary rule or has some substantive effect. (Put it like this: does your certified copy of an out-of-state criminal conviction prove the fact of the out-of-state conviction as an evidentiary mater or does it prove that you’re a convicted felon, period?). I also hasten to note that the Supreme Court has consistently required that “judgments” be given much greater force than “acts” or “records.”
Now the question is: what is the effect of the duly admitted “marriage”? You treat it as if it was produced by the court you’re in. What is the effect of a marriage certificate duly authorized and recorded of an illegal marriage? Nothing. (This comes up in other contexts, typically bigamy or consanguinity). So, the court in the “no-ssm” state treats your “ssm-state” marriage certificate as if it had been produced in that state: that is, not worth the paper its written on. Why? Because of the very reason that there is a public policy exception: “Full faith and credit does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.” * Pacific Employers Ins. Co. v. Indus. Accident Comm’n.*, 206 U.S. 493 (1939).
And even if I was wrong about all of that. We’re back to the fact that Congress gets to determine “the Effect thereof.” And, recognizing that the specific trumps the general, the unchallenged section of DOMA protects states from that possibility.
That’s a rough overview, at least.
And, as I keep saying, no court has ever used the FF&C to force a state to recognize an out of state marriage (but they do require you to recognize an out-of-state divorce, because judgments are different and all states recognize divorce).
That case was decided on equal protection, not full faith and credit:
The ruling isn’t that Kentucky has to recognize all out of state marriages, but that it can’t discriminate against same-sex couples when it chooses which ones to recognize.
Unless I’m missing something, although the plaintiffs raised FF&C, the decision is entirely about equal protection. Am I wrong? I may well be behind the news.