The Irrelevance of Full Faith and Credit

 

People often assume that the Full Faith and Credit Clause (FFC Clause) of the U.S. Constitution requires one state to recognize marriages that are performed in another state. They also believe that Congress, through section 2 of the federal Defense of Marriage Act (DOMA), has overridden that obligation.

The problem with these assumptions is that they are incorrect. There is a consensus among qualified legal scholars—progressive and conservative alike—that the FFC Clause does NOT require interstate recognition of marriages and that section 2 of DOMA is therefore legally superfluous and irrelevant.

The texts of these provisions might seem to support the faulty assumptions. The Full Faith and Credit Clause provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” (U.S. Const. art. IV, § 1.) A federal statute echoes the same language. (28 U.S.C. § 1738.)

It is often the case, however, that legal text is not what it may seem. However anyone else might read this language, the U.S. Supreme Court has final authority in the American system for giving the FFC Clause a binding interpretation. That court has done so in a large number of cases.

The Court’s decisions establish a very firm distinction, under the FFC Clause, between interstate recognition of “judicial proceedings” and interstate recognition of “public acts.” Although those concepts appear side-by-side in the FFC Clause, the Court has never interpreted the FFC Clause as imposing the same obligation with respect to each of them.

As interpreted by the Court, the FFC Clause almost always requires one state to recognize the “judicial proceedings” of another state, as long as those proceedings have reached a final conclusion. This obligation applies to divorce decrees as well as adoption decrees. If one state grants a same-sex divorce or a same-sex adoption, the FFC Clause almost certainly requires other states to recognize those judicial decrees.

But the same rule does not apply to “public acts,” including marriages. For decades the Court has made crystal clear that one state can often simply ignore the public acts of other states if it wants to. The strong obligation of recognition that applies to judicial proceedings does not apply to public acts. The FFC Clause, as interpreted by the Court, allows one state to ignore the public acts of another state as long as the ignoring state has some minimum connection to the case at hand.

Although marriages may sometimes be solemnized by judges, they are not judicial proceedings. They are not entitled to the strong duty of interstate recognition that judicial proceedings receive under the FFC Clause. Failing to appreciate that basic distinction between judicial proceedings and public acts is the chief flaw in the assumption that the FFC Clause requires one state to recognize marriages performed in another.

Nor is the Court going to eliminate that distinction or extend the strong duty of interstate recognition to public acts, including marriages. Today’s weak requirement to recognize public acts is a product of decades of experience in which somewhat stronger requirements proved unworkable. Changing today’s well-established interpretation of the FFC Clause would disrupt interstate relations in just about every area of the law. The Court is not going to do it. That is why even progressive, pro-gay legal scholars with expertise in this area concede that the FFC Clause does not require one state to recognize marriages performed in another state.

This established interpretation of the FFC Clause renders section 2 of DOMA superfluous and irrelevant, as qualified legal scholars generally recognize. Section 2 of DOMA does purport to allow states to disregard the FFC Clause and ignore out-of-state same-sex marriages. But because the FFC Clause itself usually would not require interstate recognition of same-sex marriages anyway, section 2 of DOMA, in most cases, does nothing because there is no FFC Clause obligation to override.

Some pro-gay and anti-gay advocates—lacking expertise in this area of the law—have spread the misconception that the Full Faith and Credit Clause requires interstate recognition of same-sex marriages. (Anti-gay advocates have done so to try to scare people into supporting a federal marriage amendment.)