Saturday, February 26, 2011

DOMA and the Full Faith and Credit Clause

     With the Obama Administrations recent decision to henceforth not defend the Defense of Marriage Act (DOMA) in Federal Court because of its perceived unconstitutionality, there has been alot of discussion lately in the gay blogosphere about the "Full Faith and Credit Clause" of the Constitution, and how this clause affects DOMA's Section 2. The full faith and credit clause 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.
    Pretty straightforward, or so it seems. But as with every form of Constitutional Law, this clause has been open to interpretation and has many tests that a public act, record, or judicial proceeding must meet to be declared valid in all 50 states.

    According to binding case law, all judicial proceedings in states must be respected by other states,  yet all states laws are not necessarily given the same level of respect. In fact, if a law is one way in one state, yet contradicts a public policy in another state, the second state is not obligated to honor the first state's law. This is what is known as the "Public Policy Exception".

This doctrine comes from the case Pacific Employers Company v. Industrial Accident Commission (1939), in which the Supreme Court said that...
While the purpose of that provision (full faith and credit clause) was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. As was pointed out in Alaska Packers Association v. Industrial Accident Comm., supra, page 547, 55 S.Ct. page 523: 'A rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own'. 
 And in the case of statutes, the extra- state effect of which Congress has not prescribed, as it may under the constitutional provision, we think the conclusion is unavoidable that 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.
     In essence what this case is saying is that even though a marriage may be legal in Massachusetts, if the state of Tennessee has a statute that says that marriage is between one man and one woman, if a married gay couple moves to Tenn. from Mass., the state of Tennessee  takes precedence. It is for this reason that I think we have not had a DOMA lawsuit dealing with Section 2, but instead has focused on Section 3's denial of federal benefits for legal marriages performed in approving states. This may also be why the federal cases dealing with gay marriage in the past year have won at the trial court level; for they did not attempt to sway the Court to go against established law, and instead have come at the issue from a 10th and 14th amendment angle.

    So though the argument on the Full Faith and Credit Clause may "seem" to make sense and makes for an easy argument for national marriage equality, the reality of the situation is a little more complex. As it stands now, according to binding case law it seems as though the Mini-DOMA's of the states are Constitutional and do not contravene this clause.


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