A dispute is currently ongoing about whether or not states have to recognize marriages validly contracted in other states and whether the Congress can liberate them from this duty by statute. Specifically, this dispute pertains to gay couples. Radical social conservatives claim that the Full Faith and Credit Clause of the Constitution authorizes the Congress to allow states, by statute, to refuse to recognize same-sex marriages validly contracted in other states. In other words, they claim that states don’t have to recognize out-of-state same-sex marriages, but they don’t make the same claim regarding heterosexual marriages.
Are they right or wrong? Let’s find out.
Let’s first look at the full text of the Clause, i.e. of Art. IV, Sec. 1. It’s very short. It reads as follows:
“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.”
Now, how to interpret it? I don’t know about you, folks, but most lawyers whom I talk to tell me that one should always interpret laws in good faith, i.e. try to extract clear, unambigous meanings out of them if that’s possible, and consider them ambigous only if, after multiple attempts, I cannot give the text any clear, unambigous meaning.
I believe that the FF&C Clause does require each state to recognize all marriages contracted in all other states in accordance with these other states’ laws. That’s because the Clause says “full faith and credit shall be given in each state”, and then only says that Congress may prescribe the manner in which such acts/records/proceedings shall be proven and their effect. But it doesn’t say that Congress may legislate that they have no effect in other states, or that states can disregard each other’s marriage certificates.
Thus, Congress may require, by general laws, that more than just a marriage certificate/license be presented to prove that marriage was contracted. But it may not legislate that one state can completely disregard other states’ marriage certificate.
Moreover, were I to claim that states can do that and the Congress can, by statute, allow them to do so, I would be arguing an indefensible position. Such an interpretation of the Clause makes it, or assumes that it is, internally inconsistent, self-contradictory, unclear, and ambigous. It assumes that the text is unclear and that the Congress may express this ambiguity by deciding which acts/records/proceedings other states must honor and which ones they don’t have to.
Moreover, if it were true, a dangerous precedent would be set and the country would start rolling on a dangerous slippery slope. By that same logic, the Congress could allow states to:
– refuse to recognize validly contracted heterosexual marriages from other states, because laws on who is eligible to marry vary state by state (some states allow first cousins to marry, most others do not; some states allow girls under 18 to get married, some others do not);
– refuse to recognize divorce rulings from other states (e.g. let’s say that VA decides it opposes divorce on principle, bans divorce completely, and disregards vivorce rulings from other states’ courts);
– refuse to recognize DLs from other states (after all, highway codes and DL exams vary from state to state and CA may refuse to recognize your driver license, if you have one, on the grounds that you may not have been tested sufficiently); how would you like not being allowed to drive into KY or VA because your DL is not considered valid there? or moving to VA and having to pass your DL exams all over again?
– refuse to recognize death certificates from other states; thus, a person who is considered dead in KY may be considered alive in CA.
These would be the unfortunate consequences of adopting such interpretation of the Clause. If Congress can allow states to refuse to recognize same-sex marriages validly contracted in another state, it can also allow states to disregard these other documents. Such an interpretation assumes that the Clause is internally inconsistent, self-contradictory, and unclear. It is not a good faith interpretation.
OTOH, my interpretation is a good faith one. It gives the text a clear, unambigous meaning, and one that is not absurd and is consistent with the meanings of the words in the Clause.
The only proper way to make sure that states don’t have to recognize out-of-state sex marriages is to amend the Constitution. And I support the Federal Marriage Amendment, which would ban same-sex marriage altogether.