Constitutional Law of Idaho

• Publication year: 2021

76 Nebraska L. Rev. 604. Constitutional Law of Idaho

604

Paige E. Chabora*

Congress' Power Under the Full Faith and Credit Clause and the Defense of Marriage Act of 1996

TABLE OF CONTENTS

I. Introduction 605

II. Defense of Marriage Act 608

A. The Perceived Threat of a "Tyrannical Hawaii" 608

B. Defense of Marriage Act 615

C. Debate over the Defense of Marriage Act 620

III. Textual Defense of the Ratchet and

Procedures Theories of Full Faith and Credit 621

A. Interpreting "Full Faith and Credit

shall be given". 622

B. Interpreting "the Effect thereof" 622

C. Interpreting "Congress may prescribe the Manner". 624

IV. Historical/Interpretive Defense of

the Ratchet and Procedures Theories 625

A. Drafting and Adoption of the Full Faith

and Credit Clause 625

B. Madison and the Ratchet Theory 628

C. Modern Commentary and the Procedures Theory . . . 629

D. Prior Exercise of Congress' Full Faith

and Credit Authority 631

V. Reasoning by Analogy-Comparing Congress"Full

Faith and Credit Power to Other Constitutional

Provisions. . . 635

605

A. Fourteenth Amendment Comparison: Unambiguous

One-Way Ratchet Defining Congress' Power to

Enforce the Fourteenth Amendment 635

B. Article III Comparison: Unambiguous Power to

Make Exceptions to Constitutionally Authorized

Federal Jurisdiction 639

C. Qualifications Clause Comparison: Limited Power

to Administer Procedural, not Substantive,

Regulations 640

D. Fugitive Slave Clause Comparison: (Mis)Reading

Congressional Power into Constitutional

Silence. . . 644

VI. Constitutional Principles Behind the Full

Faith and Credit Clause 647

VII. Conclusion: Anticipating DOMA's Day in Court 650

I. INTRODUCTION

As Justice Jackson described it in 1945, the Full Faith and Credit Clause(fn1) is "relatively a neglected one in legal literature."(fn2) The Defense of Marriage Act of 1996(fn3) (DOMA), however, has generated new interest in the Full Faith and Credit Clause; William Eskridge predicts that it "is about to become the Constitution's hottest provision."(fn4) Whereas the Clause requires states to give full faith and credit to the acts, records, and judicial proceedings of other states, DOMA permits states to deny full faith and credit to acts, records, and judicial proceedings that recognize same-sex marriages.(fn5) DOMA is a novel use of Congress' power under the Full Faith and Credit Clause:(fn6) for the first time in history,(fn7) Congress has exempted one category of state acts, records, and judicial proceedings from the constitutional imperative that full faith and credit "shall" be given.

This unprecedented use of the Full Faith and Credit Clause sparked a lively debate over the scope of Congress' power under the Clause. When queried regarding the constitutionality of the proposed bill, several scholars argued DOMA was an improper exercise of the full faith and credit power because the Clause does not authorize Congress to decrease full faith and credit.(fn8) According to this line of reasoning, Congress' power is subject to a "one-way ratchet," which gives Congress power to expand-but not to contract-full faith and credit.(fn9) Supporters of DOMA rejected the ratchet theory and instead maintained that Congress has broad and expansive power to exempt acts, records, and judicial proceedings that recognize same-sex marriages from the full faith and credit obligation.(fn10)

This Article explores whether Congress' full faith and credit power is indeed subject to a one-way ratchet. In the course of its analysis, this Article proposes a corollary to the ratchet theory that describes another dimension to Congress' full faith and credit power: the provision authorizing Congress to "prescribe the Manner" limits Congress to legislating only the procedures by which the full faith and credit mandate will operate. The Article terms this as the "procedures theory."(fn11) According to the procedures theory, Congress has no power to preempt state substantive law by legislating a particular normative

607

value; rather, Congress can regulate the means by which state substantive law shall be given faith and credit. In short, Congress can administer procedural, but not substantive, regulations when it exercises its full faith and credit power.

Operating in conjunction, the ratchet theory and the procedures theory suggest that Congress may legislate the procedures by which full faith and credit shall be given, and in so doing, Congress may legislate only to increase the availability of full faith and credit. The ratchet theory goes to the meaning of the "Effects Clause," stating that Congress can legislate to give positive effect to the mandate that "Full Faith and Credit shall be given." The "procedures theory" goes to the meaning of the "prescribe the Manner" provision, stating that Congress can legislate the procedures that give content to the imperative of full faith and credit. Whereas the ratchet theory identifies the permissible end for which Congress may legislate (to augment full faith and credit), the procedures theory identifies the permissible means by which Congress may legislate (to prescribe the procedural manner by which full faith and credit shall operate).(fn12)

Part II investigates the Defense of Marriage Act. The first section reviews the circumstances leading to the passage of DOMA. The second section describes the Act and briefly addresses whether same-sex marriages might have been recognized had Congress not withdrawn full faith and credit from acts, records, and judicial proceedings that recognize same-sex marriages.(fn13) The third section outlines the arguments proffered in the debate over whether or not Congress' authority includes any power to decrease full faith and credit.

Part III analyzes the text of the Full Faith and Credit Clause. It investigates the validity of the ratchet theory and the procedures theory as limits on Congress' power and offers the "textual defense" to both theories.

Part IV considers a "historical/interpretive defense" of the ratchet and procedures theories. The first section examines the drafting of the Full Faith and Credit Clause to determine whether the drafters

608

conceived of Congress' power as subject to a one-way ratchet. The second section considers how DOMA's effects conflict with Madison's view of the Clause. The third section assesses the procedures theory in light of modern commentary on the Full Faith and Credit Clause. The fourth section notes that all prior congressional action pursuant to its full faith and credit power has conformed to the one-way ratchet and procedures theories.

Part V compares the text of the Full Faith and Credit Clause to other constitutional provisions authorizing Congress to act. On balance, comparing Congress' power under the Full Faith and Credit Clause with the grants of congressional authority in the Fourteenth Amendment, Article III, the Elections Clauses, and the Fugitive Slave Clause suggests the ratchet theory and the procedures theory are in fact plausible and persuasive interpretations of Congress' power.

Finally, Part VI addresses whether the constitutional principles underlying the Full Faith and Credit Clause support the ratchet theory. The Article concludes first that the ratchet theory and the procedures theory offer plausible and superior interpretations of the Clause, and second that Congress overreached its constitutional authority when it passed DOMA.

II. DEFENSE OF MARRIAGE ACT

A. The Perceived Threat of a "Tyrannical Hawaii"

In 1993, the Supreme Court of Hawaii held in Baehr v. Lewin that the Hawaii marriage statute,(fn14) which requires marriage to be between a man and a woman, discriminates on the basis of gender in possible violation of the Equal Protection Clause of the Hawaii Constitution.(fn15) On remand,(fn16) the trial court determined that the sex discrimination was not justified by a compelling state interest.(fn17) The case is now pending appeal.(fn18)

609

The remand of Baehr caused many people to anticipate Hawaiian recognition of same-sex marriage(fn19) and thus stimulated a national conversation concerning the propriety of same-sex marriages. Amidst major debate over whether same-sex marriage is desirable in the first place, gay rights advocates celebrated.(fn20) Both opponents and advocates of same-sex marriage posited that gay and lesbian couples could marry in Hawaii and enjoy the incidents of marriage in their home states.(fn21) The debate spawned a plethora of articles examining the inevitable conflict of law question: would same-sex marriages celebrated in Hawaii be recognized outside Hawaii?(fn22) Opponents of same-sex marriage cited Baehr and the efforts of same-sex marriage advo

610

cates as a call to action; the specter of a "Tyrannical Hawaii," ready judicially to impose its sanction of same-sex marriages on unwilling states, became a popular target of political animosity.(fn23)

As commentators have noted, however, the threat that states opposed to same-sex marriage would be forced to recognize same-sex marriages under the Full Faith and Credit Clause was unfounded. The interstate recognition of marriages is governed by conflict of law rules, not the Full Faith and Credit Clause.(fn24) Although well-established conflict of law doctrine declares that marriages are recognized as valid if they were valid in the state where celebrated,(fn25) the "public policy exception" to the "place of celebration" rule allows a state to deny recognition to marriages that violate the state's public policy.(fn26) Hence, the threat posed by the Full Faith and Credit Clause to states opposed to same-sex marriage was overstated.(fn27)

611 ...