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 a
split in the circuits on a separate question also
deeply important to same-sex families and their
children whether a state must accord full faith and
credit to sister state judgments of adoption of
children 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 not
obligated to accord full faith and credit to out-of-state
adoption decree for purpose of naming both fathers on
their Louisiana-born adopted child’s birth certificate) with
Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007)
(holding the contrary, in Oklahoma challenge).
Then, again, on page 42:
The district court correctly ruled that “[t]his backward
evolution in Ohio” violates the guarantee of full faith and credit.
App. 154a-55a n.i. This Court has long made clear that states
cannot disregard foreign judgments based on their own public
policy preferences. Baker v. General Motors Corp. , 522 U.S. 222,
232-33 (1998) (“[O]ur decisions support no roving ‘public policy
exception’ to the full faith and credit due judgments” (citation
omitted)); id. at 243 (Kennedy, J., concurring) (“We have often
recognized the second State’s obligation to give effect to another
State’s judgments even when the law underlying those judgments
contravenes the public policy of the second State.”) Instead, the Full
Faith and Credit Clause “ordered submission by one State even to
hostile policies reflected in the judgment of another State, because
the practical operation of the federal system . . . demanded it.” Estin
v. Estin, 334 U.S. 541, 546 (1948).
So, yeah, discussion of the Full Faith and Credit clause was a big part of the case at first.
On April 1 Wyoming filed an amici curae brief (PDF Download)
dealing with it. It cited prior examples of states not recognizing other states marriages, including on page 7:
Lanham v. Lanham, 117 N.W. 787, 788 (Wis. 1908)
the Wisconsin Supreme Court refused to recognize a
sister-state marriage that was in violation of the forum’s
temporary prohibition on remarriage following a divorce.
on page 8:
Osoinach v. Watkins, 180 So. 577, 581 (Ala. 1938).
The Alabama Supreme Court employed similar
reasoning when declining to recognize a marriage
between an uncle and niece even though the
marriage was valid at the place of celebration.
After listing several more instances, in several more states, on page 12 the brief states:
full faith and credit ‘is less demanding with respect
to 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.’”
Interesting, if uncomfortable points here.
So, the final brief (PDF download
) is interesting. The Full Faith and Credit issue isn’t even addressed. Not even with respect to the adoption (remember that the precedent cited above was only about marriage).
Although the majority did not specifically address the Vitale-
Talmas Petitioners‘ Full Faith and Credit claim, its blanket
reversal of all decisions below reversed the district court‘s
ruling on that claim as well.
Yeah, I know, it’s a quibble, but I’d actually like to hear some more (probably dry and scholarly) discussion on the full faith and credit question here. Preferably while knitting a rainbow colored sweater.
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