The meaning of "general laws": the extent of Congress's power under the Full Faith and Credit Clause and the constitutionality of the Defense of Marriage Act.

AuthorJohnson, Julie L.B.

INTRODUCTION

On September 21, 1996, President Clinton signed the Defense of Marriage Act ("DOMA" or "Act") into law.(1) The Act is a direct response to a recent decision by the Supreme Court of Hawaii, Baehr v. Lewin,(2) that ultimately may lead to the recognition of same-sex marriages(3) in Hawaii.(4) The DOMA contains two substantive provisions. One provision defines "marriage" and "spouse" for federal purposes as requiring two persons of the opposite sex.(5) The other substantive provision, section 2 of the Act, provides that states do not have to recognize a same-sex marriage performed and valid in another state.(6) The latter provision is the focus of this Comment.

In enacting section 2 of the DOMA, Congress purported to act pursuant to its power under the Full Faith and Credit Clause of the Constitution.(7) The Full Faith and Credit Clause allows Congress to prescribe "by general Laws" the effect that one state's "public Acts, Records, and judicial Proceedings" will have in every other state.(8) Prior to the Act, Congress had exercised power under this Clause on only three occasions.(9) Each time it acted either to clarify or to extend the application of the Full Faith and Credit Clause; for example, by mandating full faith and credit for custody decrees to ensure cooperation among the states.(10) The DOMA is thus the first attempt by Congress to limit application of the Full Faith and Credit Clause.

This congressional withdrawal of full faith and credit, on its own, raises constitutional concerns. Some commentators believe that the Act is unconstitutional because the limiting of full faith and credit contravenes the unifying principles of the Full Faith and Credit Clause.(11) I However, there is no direct support for this proposition in either the text or the legislative history of the Clause or its implementing act.(12) It is therefore uncertain whether the Supreme Court would overturn the statute on this ground.

A more suspect facet of this legislation is its selective impact on the recognition of extraterritorial acts, records, and judicial proceedings.(13) With regard to acts and records, the Act will disrupt the general rule that a marriage valid in one state will be recognized in every other state.(14) The disruption with regard to judicial proceedings will be even greater. As the full faith and credit doctrine has evolved over the last two centuries, it has been applied with the most rigor to state judgments.(15) The DOMA, however, declares that even a state judgment validating a same-sex marriage need not be given full faith and credit in another state's court.(16)

Thus, the first reason that this reversal in the full faith and credit doctrine is problematic is that it singles out a very narrow class of acts, records, and judgments to be denied full faith and credit. Congress's power to legislate regarding the effect of acts, records, and proceedings is limited to "general Laws."(17) Although there has been almost no discussion of this aspect of the Clause, the language suggests that Congress may make only general rules regarding extraterritorial recognition, and may not target a specific segment of acts, records, or judgments.

Perhaps even more disturbing is the portent of the Act if allowed to stand: the asserted ability of Congress tN restrict the scope of the Full Faith and Credit Clause through legislation. If Congress it permitted to withdraw the mandate of full faith and credit from specific acts, records, or judgments, the status of each state as an independent sovereign within our federal system is vulnerable. Just as Hawaii may find that some of its marriages and judicial decrees may be disregarded by other states, as a matter of federal law, so too Kentucky may find that another state need not honor its commercial contracts, or Wyoming may discover that its wrongful death judgment will not always be enforced in every other state.(18) In combination, the narrowness of the Act and its unprecedented limiting purpose should be sufficient grounds for the Supreme Court to declare the Act unconstitutional.

A full understanding of the legislation's potential unconstitutionality requires an examination of many substantive areas, including the history of the Full Faith and Credit Clause, its interpretation against a background of conflict-of-laws rules, and their combined application to the unique area of marriage.

Traditionally, states have recognized a marriage as valid if it would be valid in the state in which it was performed.(19) However, states have sometimes refused to do so when such recognition would violate a strong public policy of the state.(20) The ostensible purpose of the DOMA is to bolster the states' ability to deny recognition of extraterritorial same-sex marriages.(21) The public policy exception already available to the states may appear to render section 2 of the DOMA superfluous. However, closer examination reveals that Congress purports to do far more than codify the existing public policy exception.(22) A background understanding of these subjects highlights the constitutional infirmities of section 2 of the DOMA.

Part I of this Comment discusses the drafting and interpretation of the Full Faith and Credit Clause, and describes its coordination with conflict-of-laws rules. The application of these combined doctrines to extraterritorial marriages, generally ensuring their recognition by sister states, is outlined in Part II. Part III provides a discussion of the forces behind, and against, same-sex marriages, including the policy reasons advanced against recognition of these unions. Part IV describes the text and legislative history of the DOMA as revealing both the motives and constitutional concerns of the members of Congress. Part V summarizes these issues in an analysis of the constitutionality of the DOMA. It concludes that section 2 of the Act should be found unconstitutional on the grounds that it exceeds Congress's power to legislate, by "general Laws," under the Full Faith and Credit Clause and that it unduly interferes with the status of the states as independent sovereigns.(23)

  1. THE FULL FAITH AND CREDIT CLAUSE

    1. History and Evolution

      Although a substantial amount of scholarly attention has been paid to the history of the Full Faith and Credit Clause,(24) the information surrounding the drafting of the Clause is sparse. Prior to the Revolution, a colony confronted with a statute or judgment from another colony would usually decline to recognize the statute or judgment and would resolve the issue anew.(25) The Articles of Confederation included a provision similar to its constitutional successor.(26) This provision may have represented an attempt to militate against the disregard, inherited from England, for extraterritorial enactments or decisions.(27) This initial provision in the Articles differed, however, from the Full Faith and Credit Clause in that it lacked a grant of power to Congress(28) and was interpreted and applied as a strictly evidentiary rule.(29) The somewhat tepid success of this initial provision prompted the members of the Constitutional Convention to set out to craft a better solution.(30)

      Thus, when it came time to draft the version for the Constitution, the initial clause provided that, "[f]ull faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and Magistrates of every other State."(31) The suggestion by James Madison to authorize Congress "to provide for the execution of judgments in other States"(32) led to the proposal of the following provision: "and the Legislature shall by general laws prescribe the manner in which such acts, Records, & proceedings shall be proved, and the effect which judgments obtained in one State, shall have in another."(33) When the clause reached its final form, the word "shall" had been replaced with "may," and the power of Congress had been extended to "prescrib[ing] the effect" of acts, records, and judicial proceedings.(34) The drafters made this latter change over the protest of Mr. Randolph, a convention member from Virginia, that "its definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers."(35) This history, albeit brief, strongly suggests that the drafters were cautious about extending the authority of Congress.(36) In addition, the drafters intended the Clause to unify the newly joined states into a nation. The Supreme Court has recognized this underlying purpose:

      The Full Faith and Credit Clause is not to be applied, accordion-like, to

      accommodate our personal predilections. It substituted a command for

      the earlier principles of comity and thus basically altered the status of

      the States as independent sovereigns. It ordered submission by one

      State even to hostile policies reflected in the judgment of another State,

      because the practical operation of the federal system, which the

      Constitution designed, demanded it.(37)

      Having been granted the authority to legislate, Congress promptly provided for the means of authenticating public acts and judicial records and proceedings in the Act of May 26, 1790.(38) The Act passed quickly; if there was any debate over its passage, there is no record of it.(39) Shortly thereafter, in the Act of March 27, 1804, Congress provided for the authentication of non-judicial records and expanded the reach of the implementing act to include the territories of the United States.(40)

      During the infancy of the Full Faith and Credit Clause, there was considerable debate about how to interpret the Clause and its implementing act, focusing primarily on whether they were intended to be discretionary or self-executing.(41) Because courts had interpreted "full faith and credit," as used in the Articles of Confederation, to be an evidentiary rule, they initially adopted this interpretation when applying the constitutional...

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