First of all, let me repeat (from yesterday):
I am very much gladdened by yesterday’s SCOTUS decision on the right to marry. It was the right decision, without question. Before saying anything else, I understand that, from a pragmatic point of view, the 14th Amendment argument was the way to go. People certainly shouldn’t have to leave their home state in order to get married, that’s absurd and untenable.
Having said that, from the point of view of respect to the constitution, I was bothered by the fact that the full faith and credit clause of the constitution fell off the page.
For those who don’t recall what I’m talking about, Article IV, Section 1 of the United States Constitution, known as the “Full Faith and Credit Clause“, addresses the duties that states within the United States have to respect the “public acts, records, and judicial proceedings of every other state.” It’s why your driver’s license is a valid document even if you drive all the way across the country, even if one state has a harder licensing test than another.
But, still, especially if one has any actual concern for the Constitution (the rules which limit the laws), and the ability of the United States to function as a single country, a state being able to ignore the clause is disastrous. The fact that it was basically the ‘original intent’ faction which was doing this is in and of itself mindblowing.
So, after heaving a sigh of relief that the correct decision was reached I decided to do some searching on the subject. I felt that it’s disappearance from the discussion must have come from the attention of activists and press both on the bigger, more likely to have an impact, 14th Amendment. Unfortunately, I don’t think that’s the case. If I’m missing some serious discussion that legal geeks have come across, please enlighten me.
The Writ of Certiorari Henri-Obergfell v Hodges (PDF download) definitely mentions it. Explicitly, on page 29:
The Sixth Circuit decision likewise exacerbates asplit in the circuits on a separate question alsodeeply important to same-sex families and theirchildren whether a state must accord full faith andcredit to sister state judgments of adoption ofchildren parented by same-sex couples.
Compare Adar v. Smith 639 F.3d146 (5th Cir.) (en banc),cert. denied, 132 S. Ct. 400 (2011) (holding Louisiana notobligated to accord full faith and credit to out-of-stateadoption decree for purpose of naming both fathers ontheir Louisiana-born adopted child’s birth certificate) withFinstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007)(holding the contrary, in Oklahoma challenge).
The district court correctly ruled that “[t]his backwardevolution in Ohio” violates the guarantee of full faith and credit.App. 154a-55a n.i. This Court has long made clear that statescannot disregard foreign judgments based on their own publicpolicy preferences. Baker v. General Motors Corp. , 522 U.S. 222,232-33 (1998) (“[O]ur decisions support no roving ‘public policyexception’ to the full faith and credit due judgments” (citationomitted)); id. at 243 (Kennedy, J., concurring) (“We have oftenrecognized the second State’s obligation to give effect to anotherState’s judgments even when the law underlying those judgmentscontravenes the public policy of the second State.”) Instead, the FullFaith and Credit Clause “ordered submission by one State even tohostile policies reflected in the judgment of another State, becausethe practical operation of the federal system . . . demanded it.” Estinv. Estin, 334 U.S. 541, 546 (1948).
Lanham v. Lanham, 117 N.W. 787, 788 (Wis. 1908)
the Wisconsin Supreme Court refused to recognize asister-state marriage that was in violation of the forum’stemporary prohibition on remarriage following a divorce.
Osoinach v. Watkins, 180 So. 577, 581 (Ala. 1938).
The Alabama Supreme Court employed similarreasoning when declining to recognize a marriagebetween an uncle and niece even though themarriage was valid at the place of celebration.
full faith and credit ‘is less demanding with respectto choice of laws’ than it is with respect to judgments.”Thus, because a marriage is not a judgment,courts may consult “the forum State’s ‘public policy.’”
Although the majority did not specifically address the Vitale-Talmas Petitioners‘ Full Faith and Credit claim, its blanketreversal of all decisions below reversed the district court‘sruling on that claim as well.