Bryan Fischer
Full faith and credit clause does not mandate gay marriage
By Bryan Fischer
May 31, 2013

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

"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." ~ United States Constitution, Article IV, Section 1

There is a legal theory floating around in the debate over DOMA and Prop 8 to the effect that the "full faith and credit" clause of the Constitution requires states to recognize sodomy-based marriages performed in other states.

Not so, and for several reasons.

One, as the Federalist Papers make clear, the "full faith and credit" clause deals with judicial acts, not legislation. It concerns state courts, not state legislatures. It concerns judicial decisions, not public policy.

For example, if a court in Kansas finds you liable to a creditor and orders you to pay up, you can't run from your debt by taking refuge across the border in Missouri. Missouri has a constitutional obligation to recognize the court ruling in Kansas.

And if a court in Missouri finds you guilty of murder, you can't beat the rap by fleeing to Kansas. Kansas is obligated to recognize the court's decision and send you back for judgment.

Just three years after the Constitution had been ratified, Congress enacted legislation under the aegis of the full faith and credit clause. The legislation read, "the 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." (Emphasis mine.)

The clause concerns judgments rendered in a court of law; as the above excerpt makes clear, it deals with courts and court rulings, not legislatures and state law. In fact, the primary intent of the provision was to prevent businessmen from fleeing court-ordered judgments in one state by taking refuge in another.

In 1813, the Supreme Court interpreted this federal statute, in the case of Mills v. Duryee. The Court ruled that, "The act declares, that the record, duly authenticated, shall have such faith and credit as it has in the state court from whence it is taken. If in such court it has the faith and credit of evidence of the highest nature, viz., record evidence, it must have the same faith and credit in every other court."

Second, the Court has long recognized a public policy exception to the full faith and credit clause, by drawing a clear distinction between state judgments and state laws. As recently as 2003, the Court wrote (in Franchise Tax Board v. Hyatt) that, "[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments." (Emphasis mine.)

So if court action in one state conflicts with the public policy in another, federal courts have been rightly reluctant to force a state to enforce any pronouncements of another state which contradict its own public policy.

The Court made this "public policy exception" plain in 1939, in Pacific Employers Insurance v. Industrial Accident. Wrote the court:

"[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy...And in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events." (Emphasis mine.)

Simply put, this means, according to the Supreme Court, that a homosexual marriage license issued in one state has no validity in a state whose public policy prohibits recognition of homosexual marriages.

Third, an entire galaxy of licenses issued in one state are not recognized in other states. Some use the example of drivers' licenses and as an example of how the full faith and credit clause works. A license issued in Idaho will suffice if you are traveling through Mississippi. Fair enough. But if you move to Mississippi, you will be required to get a license issued by the state of Mississippi in short order. Your Idaho license will cut you no ice in that case, full faith and credit clause or no.

Doctors, attorneys, pharmacists, contractors and plumbers get licensed to practice their profession in one state, but must get licensed all over again if they want to practice in another state. Just because you possess a license – whether a law license or a hunting license or a marriage license – does not mean another state is obligated to validate that license in its own jurisdiction. For instance, try using your concealed carry license issued by the state of Texas in the city of New York. Call me when you make bail.

Joseph Story, eminent Supreme Court jurist and author of the first definitive history of the Constitution, wrote that it is the "general rule" that states honor marriage certificates granted in other states. But if it is a "general" rule, then the clear implication is that there are exceptions. States, out of legal courtesy, do grant recognition to marriage licenses issued in other states, but are not obligated to do so if the issuance of that license is at variance with that state's own public policy on marriage.

Patrick Joseph Borchers of the Creighton University School of Law wrote a 12-page analysis which was published in the Creighton Law Review. Here is the abstract:

"Although the Full Faith and Credit Clause is often assumed by the popular press and some legal commentators to impose a mandatory duty on states to recognize same-sex marriages validly celebrated in another state, this common assumption is clearly false. States have always retained the power to refuse to recognize some out-of-state marriages that violate their expressions of public policy. This has happened with, for example, marriages involving underage spouses or marriages that violate a state's consanguinity rules. Marriages do not stand on the same constitutional footing as litigated judgments. As a result, whether a state chooses to recognize a same-sex marriage celebrated in another state is a function of the recognizing state's law and its conflict-of-laws principles and not a matter of constitutional compulsion." (Emphasis mine.)

In a piece published on the website of Yale Law School, Lea Brilmayer and Howard Holtzman write the following:

"Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses."

Said Andrew Koppelman, a law professor at Northwestern University, ''No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to.''

This issue is far from abstract. In its rulings on DOMA and Prop 8, the Supreme Court may well butcher the full faith and credit clause by imposing sodomy-based marriage on all 50 states, state constitutional amendments or no. Activists are already pushing for polygamous marriages to receive recognition, and it's important to note that an activist ruling by the court on gay marriage could well lead to every state being compelled to recognize polygamy as soon as one state does.

Other activists want to eliminate age of consent restrictions altogether, meaning adults could marry children just like Muslims do, and still others want to marry animals. The Supreme Court may well, in effect, be tyrannically imposing such moral monstrosities on the entire country.

Here's hoping the Court has enough constitutional sense, moral decency and foresight not to make a catastrophic blunder here. Here's hoping the Court gives full faith and credit to the 30 states whose constitution forbids same-sex marriage. If it does not, it will indeed be too late for America. We will have become Rome. We will no longer be slouching toward Gomorrah, we will be bullrushing it at warp speed.

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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