The Essential Irrelevance of the Full Faith and Credit Clause to the Same-sex Marriage Debate

• Publication year: 2003

38 Creighton L. Rev. 353. THE ESSENTIAL IRRELEVANCE OF THE FULL FAITH AND CREDIT CLAUSE TO THE SAME-SEX MARRIAGE DEBATE

Creighton Law Review

Vol. 38

PATRICK J. BORCHERS(fn*)

INTRODUCTION

Sometimes ideas gain momentum through repetition. The idea that the Full Faith and Credit Clause would require national recognition of a same-sex marriage solemnized by one state is apparently one of them. Some discussion of the issue appears almost once per day, on average, in the popular press.(fn1) While some commentary and reporting are reasonably well-informed, much of it is in the vein of the following: "[s]tates that do not have gay-marriage bans in place will likely be required to recognize same-sex married couples from Massachusetts because of the 'full faith and credit clause' in the federal Constitution, legal experts say."(fn2)

As we shall see, this is a very dubious assertion. A large volume of legal commentary, including two efforts of my own, has already addressed this issue.(fn3) It is difficult to plow new ground. My modest purpose in this essay is to review some of the major points and to discuss some new judicial developments.

I. THE PLACE-OF-CELEBRATION RULE

Let's begin with an elementary proposition: most of conflicts law is state law. Where, for example, the tort laws of states come into conflict, it is the forum state's conflicts principles that determine which state's tort law to apply.(fn4) Where the contractual rules of states come into conflict, it is up to the forum state's conflicts rules to determine which state's contract law applies.(fn5) And where the marriage laws of states come into conflict, it is up the forum state's conflicts principles to decide which state's marriage law to apply.(fn6)

It probably should not come as a surprise that questions concerning the validity of interstate marriages have produced their fair share of interesting conflicts cases over the years. Marriage laws of states often differ in particulars such as age and consanguinity rules. Not infrequently, couples have married in a state that would validate their union but then found themselves in a state whose marriage law would not allow their union. In such circumstances, the courts have been required to figure out what to do.(fn7)

The basic rule in the United States has been and continues to be, that marriages valid in the place of celebration are generally valid everywhere.(fn8) For the most part, this is a sensible rule. A so-called "limping marriage"(fn9) - valid in some places but not in others - is a suboptimal arrangement. Couples moving from state to state usually rightly anticipate that their status does not change. Marriages, after all, are not like fishing licenses where one needs a new one in each new state and with each new season.

But, and there is always a "but" when it comes to the conflict of laws, there is an exception for public policy reasons. For most traditional choice-of-law rules, states have claimed a right not to apply foreign rules that offend "some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal."(fn10) Although sparingly applied, this public policy defense varies in its application from state to state and serves as a safety valve against the application of unfamiliar rules that offend the forum's deeply held policies.

Occasionally, the public policy exception is invoked to refuse recognition to an out-of-state marriage.(fn11) But the question of whether or not to recognize a foreign marriage has almost always been treated as a question of state law. With the exception of limitations on marriage that are substantively unconstitutional,(fn12) definition and recognition of marriages is a state law issue.

II. FULL FAITH AND CREDIT BASICS

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 Congress may by General Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."(fn13) There is convincing historical research showing that the Clause and its implementing statute(fn14) were meant to realize the "evidentiary" view that common law courts took towards the judgments and laws of other states.(fn15) Under this view, giving faith and credit to another state's laws or judgments would mean that if properly proved their authenticity could not be disputed, but the effect of them would be for the recognizing court to determine. In the case of sister state judgments, the Supreme Court, however, rejected the evidentiary view early on, holding - with some limited exceptions - that a judgment had to be given at least as much effect by a recognizing state as it would have in the rendering state.(fn16) As a consequence, U.S. courts are required to honor each others' judgments even if convinced that those judgments are premised on a serious legal or factual error.(fn17)

Although the "automatic effect" rule works reasonably well for judgments, it would be hugely problematic in giving faith and credit to other states' laws. Pursued logically, this approach would require automatic application of a sister state's law every time that other state had a connection with the dispute. The Supreme Court eventually recognized this problem, and thus developed a much more flexible approach to the constitutional regulation of choice-of-law.(fn18) The most significant modern application of that approach is the Supreme Court's opinion in Allstate Ins. Co. v. Hague.(fn19) In that case, Ralph Hague, a longtime Wisconsin resident employed over the border in Minnesota, died while riding as a passenger on a motorcycle that collided with another car.(fn20) The accident occurred in Wisconsin; the other car was driven by a Wisconsin resident.(fn21) Neither the driver of the other car nor the operator of the motorcycle carried insurance, so Hague's widow was left to pursue the couple's insurer for their uninsured motorist coverage.(fn22) The couple had three vehicles, each with $15,000 in coverage for uninsured motorists. Minnesota and Wisconsin law apparently differed on a question of construing the policies.(fn23) Minnesota law allowed Mrs. Hague to "stack" the policies and recover $45,000; Wisconsin law - as understood by the Minnesota courts - would not have allowed stacking and would have limited her to $15,000.(fn24)

The Minnesota Supreme Court decided to apply Minnesota law to the dispute.(fn25) Although acknowledging the relatively slight connection of the dispute to the forum state, the Minnesota high court - applying Professor...