Full Faith and Credit for Dummies

• Publication year: 2003

38 Creighton L. Rev. 465. FULL FAITH AND CREDIT FOR DUMMIES

Creighton Law Review

Vol. 38

RALPH U. WHITTEN(fn*)

I. INTRODUCTION

The purpose of this article is to summarize the history and current interpretation of the Full Faith and Credit Clause of the United States Constitution.(fn1) Because the article is based on a presentation at a conference on interjurisdictional recognition of same-sex marriages, it will pay particular attention to the application of the Full Faith and Credit Clause to marriage issues. Section II of the article will briefly summarize the history of full faith and credit jurisprudence and demonstrate how that history explains some apparent anomalies in the modern administration of the clause. Section III will discuss the contemporary interpretation of the clause. Section IV will examine how the modern interpretation of the clause bears on issues of marriage. Section IV will also examine the Defense of Marriage Act ("DOMA")(fn2) and how that act affects the recognition in each state of same-sex marriages performed in other states. Section V will conclude with some general remarks about the probability of the historical or modern interpretation of the Full Faith and Credit Clause having any bearing on the result of the constitutional debate over restrictions on same-sex marriage.

One word of caution is in order. As its title indicates, this article is intended to describe the basics of full faith and credit jurisprudence rather than to be a detailed exposition of the historical or modern jurisprudence of the clause.(fn3) I have written numerous articles on the core issues of the interpretation of the Full Faith and Credit Clause, as well as on the application of the clause to interjurisdictional recognition of marriage and other domestic relations issues.(fn4) Putting it bluntly, there is nothing new here because there is nothing new to say. Therefore, those who wish a more elaborate exposition of the historical or modern full faith and credit jurisprudence, including the massive literature spawned by the same-sex marriage issues over the last eleven years, will have to consult other sources.(fn5)

II. A CONCISE HISTORY OF THE FULL FAITH AND CREDIT CLAUSE

The text of the Full Faith and Credit Clause provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."(fn6) The history of the clause indicates that the first sentence was designed to give only a minor evidentiary command to the states. Translated into modern parlance, the first sentence of the clause commanded that the public acts (or statutes), non-judicial records, and judicial proceedings (or judgments) of each state had to be admitted into evidence as conclusive proof of their own existence and contents - i.e., as proof that such a statute, record, or judgment actually existed and dealt with the matters contained in the (properly authenticated) copy of the statute, record, or judgment presented to the court that was being asked to recognize it. The first sentence did not command that any particular effect be given to the statute, record, or judgment; nor did it contain conflict-of-laws or jurisdictional commands to the states concerning the statutes, records, or judgments of other states.(fn7) The evidence also indicates that the significant power being granted to the national government in the clause was granted in the second sentence to Congress in the form of the power to declare the effect that state statutes, records, and judgments had to be given in other states.(fn8)

For over a century after its creation, the case law under the Full Faith and Credit Clause developed under the first implementing statute enacted by Congress under the clause. That statute, enacted in 1790, remained essentially the same until 1948, when it was amended into its present form. As originally enacted, the statute provided:

That the acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto: That the records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.(fn9)

The first part of this statute provides how state statutes and judicial records and proceedings are to be authenticated so that they may be admitted into evidence in other states. The last sentence employs the words faith and credit, which also appear in the first sentence of the constitutional clause, and the use of these terms gave rise to an extensive debate over whether Congress was attempting in the statute to declare the non-evidentiary effect that state judicial records and proceedings were to have in other states. Most courts and judges considering the question concluded that Congress was not, in the "such faith and credit phrase," attempting to declare a non-evidentiary effect for state judgments in other states. To these courts, it was absurd to suppose otherwise, because the words "faith" and "credit" were understood as evidentiary terms, and for Congress to use them in an attempt to declare the non-evidentiary effect that state judgments should have in other states would be to use the words in a sense different than they had been used in the first sentence of the Full Faith and Credit Clause of the Constitution.(fn10) For example, Chief Justice John Marshall stated for the United States Circuit Court in Peck v. Williamson:(fn11)

To us it appears very clear that the constitution makes a pointed distinction between the faith and credit, and the effect, of a record in one state when exhibited in evidence in another. With respect to the former, the Constitution is peremptory that it must have full faith and credit; with respect to the latter, it provides that congress may prescribe the effect thereof. Unless Congress had prescribed its effect, it should be allowed only such as it possesses on common-law principles. In our opinion Congress have not prescribed its effect. To suppose that they have is to believe that they use the words "faith and credit" in a sense different from that which they have in the clause of the Constitution upon which they were legislating.(fn12)

Despite a majority view in favor of the narrower "evidentiary meaning" of the implementing statute, the United States Supreme Court in Mills v. Duryee(fn13) held that the last sentence of the implementing statute meant that the courts of every state had to give the same effect to the judgments of other states as the latter would have in the courts of the state that rendered them. However, the Court did not in Mills contradict in any way the evidentiary understanding of the first sentence of the clause.(fn14)

In the remainder of the nineteenth century, the law of interstate judgment enforcement developed in accord with the interpretation of the implementing statute in Mills.(fn15) Significantly, however, the "such faith and credit" command of the statute applied only to state judicial records and proceedings, not state public acts, or statutes. Thus, states were not required by the implementing statute to give any effect to the statutes of other states. Even more significantly, no case until 1887 even suggested that the first sentence of the Full Faith and Credit Clause required any effect (other than the evidentiary effect described above) to be given to state statutes in other states,(fn16) and no case until the twentieth century actually held that a non-evidentiary effect had to be given to state public acts in other states.(fn17) If the first sentence of the clause had been originally understood to embody conflict-of-laws commands to the states concerning the statues of other states (as it has been interpreted in the twentieth century), the understanding surely would have surfaced much earlier than it ultimately did. The fact that the Supreme Court came so late to this interpretation of the first sentence is, therefore, powerful evidence that the Court has incorrectly expanded the clause beyond its originally understood boundaries.

When the Court first got around to requiring that states give effect to the statutes of other states in the twentieth century, it was initially inclined to incorporate the "territorial rules" of the vested rights system of conflict of laws into the clause.(fn18) The Court's approach "evolved" from this territorial position to a balancing approach in which it weighed the interests of the concerned states in having their law applied.(fn19) This approach, in turn, was ultimately displaced by the modern approach discussed in the next section of this article, under which a state is allowed to apply its own law to a case (as opposed to the statute of another jurisdiction) any time it...