Full faith and credit clause and state recognition of same-sex marriage

Constitutional Law

Full Faith and Credit: State Recognition of Homosexual Marriages

When dealing with the already controversial realm of gay rights, there is no area more controversial than gay marriage. For some, the idea that homosexual couples should have the same benefits surrounding marriage that heterosexual couples have is purely a question of civil rights. Under this argument, the constitutional idea of equal protection and due process require that same-sex couples be treated just like any other heterosexual married couples. Some see homosexual marriage as a moral question. Another argument that some make is that it undermines family values. They propose that heterosexual marriage is founded upon the need to procreate, which is something homosexual couples cannot do. The opposition to this argument notes that elderly, disabled, and infertile people are free to marry without giving any thought to procreation (Same Sex Marriage: Developments in the Law, 2009).

Throughout history this country has seen enthusiastic debates about what kinds of marriages should be recognized as valid. Back in 1862, Congress passed the Morrill Act, which prohibited polygamy. Since the 1970's, courts have permitted laws that have limited marriage to opposite-sex couples. Today the debate continues surrounding same sex couples and the recent events in California and across the nation have really fueled the fire (Borton, 2008).

"On May 15, 2008, the California Supreme Court decided In Re Marriage Cases, allowing same-sex couples to marry" (Borton, 2008). In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], is a California Supreme Court case that ruled that statutes that treat persons differently because of their sexual orientation should be looked at very carefully and that the existing California laws that limit marriage to opposite-sex couples violates the state constitutional rights of same-sex couples and can not be used to prevent same-sex couples from marrying (Borton, 2008).

This decision has stirred up controversy and brought two old debates back to life. The first being that if a same-sex couple legally marries in one state, must other states recognize that martial union? And second, will state recognition of homosexual marriages lead to anti-polygamy laws bring overturned (Borton, 2008)?

Although the U.S. Constitution requires that each state give full faith and credit to the laws of states, the federal Defense of Marriage Act (DOMA), specifically goes against the full faith and credit requirement in the case of same-sex marriages. In 1996 Congress enacted the Defense of Marriage Act (DOMA), under which the recognition of same-sex marriages is banned and allows states to do the same. Since 1996, many states have also enacted legislation that prohibits same-sex marriages or the recognition such. States have traditionally recognized marriages that have taken place in other states, even if those marriages go against the marriage laws of that particular state. Under the full faith and credit clause laid out in the Constitution, states are generally required to recognize and honor the public laws of other states (Same Sex Marriage, Civil Unions and Domestic Partnerships, 2009). Many states have followed suit and also passed DOMA laws that specifically bar same-sex marriages (Same Sex Marriage: Developments in the Law, 2009). There are currently forty-one states that have passed statutory Defense of Marriage Acts. Three of these states have laws that were passed before DOMA that defines marriage as between a man and a woman. There are thirty states have defined marriage constitutionally. In 2006, Arizona became the only state that has ever defeated a constitutional amendment defining marriage between a man and a woman, but has since passed one in 2008 (Same Sex Marriage, Civil Unions and Domestic Partnerships, 2009).

Maine recently passed a domestic partnership law that offers some limited benefits to registered couples. These benefits are mostly related to disability and end-of-life issues. The law states that partners take precedence over other family members when it comes to acting as guardian if one partner becomes disabled. It also gives the right for couples to inherit from one another without a will (Same Sex Marriage: Developments in the Law, 2009).

New Jersey passed a domestic partner law in January of 2004 which applies to same-sex couples and to opposite-sex couples in which one partner is age 62 or older. The benefits that this law provides include equality with married couples in regards to insurance coverage and medical decision making. It also allows for joint state tax return filing. It does not though provide for inheritance rights, rights for spousal support if the relationship ends, or automatic parental rights (Same Sex Marriage: Developments in the Law, 2009).

There are only two states that currently allow same-sex marriages, California and Massachusetts. There are four different states that allow civil unions for same-sex couples. These include Connecticut, New Hampshire, New Jersey, and Vermont. Four other states allow couples to register as domestic partners. These are others Maine, Hawaii, Oregon, and Washington. After Massachusetts began allowing same-sex marriage in 2003, twenty-three states quickly passes constitutional amendments that prohibit such marriages. There were already four states that had such constitutional provisions in place. At the federal level, there have been many unsuccessful attempts at amending the U.S. Constitution in which to prohibit same-sex marriages (Borton, 2009). There have been several proposals before Congress to amend the federal Constitution, in order to define marriage as occurring between a man and a woman. These proposals have also wanted to ensure that states would not be required to recognize same-sex marriages from other jurisdictions. Opponents of these amendments cite federalism concerns in addition to support for same-sex marriages. In order to amend the Constitution there must be a vote of approval by 2/3 of the U.S. House and Senate and 3/4 of the state legislatures for enactment, which has proved very hard to get (Same Sex Marriage, Civil Unions and Domestic Partnerships, 2009).

After the California Supreme Court granted same-sex couples the right to marry, again the questions began to be raised. Do same-sex couples who legally marry in one state have a Constitutional right to have that marriage held valid in other states? There are arguments on both sides of the issue, and some courts have ruled that at least some rights of state-recognized couples must be recognized in other states. These arguments are in fact based on the Full Faith and Credit Clause of the U.S. Constitution. The clause, which can be found in Article IV, Section 1 of the Constitution, says that full faith and credit will be provided in each State in regards to the public acts, records, and judicial proceedings of every other State. This provision, at first look, would seem to require that all states recognize a marriage, civil union, or domestic partnership performed legally in any other state, including same-sex unions. A state that refuses to recognize these unions would not only be refusing to grant a right to that couple, but would also be allowing individuals to get out of the obligations of their legal same-sex marriage in another state (Borton, 2009).

There is however obstacles that may prevent the application of this clause. In Pacific Employers Insurance v. Industrial Accident Comm'n, 306 U.S. 493 (1939), the Court stated, "there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy." This says that States may refuse to recognize a law of another state if it violates that state's own recognized public policy. However, the Court has in the past required states to enforce other states' judgments with no public policy exceptions (Borton, 2009).