Full faith and credit for same-sex marriages?

Political Science Quarterly

Volumn 112, Issue 1, 1997, Pages 117-134

  Kersch, Ken I ^a  

^a NONE

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EID: 0031094134     PISSN: 00323195     EISSN: None     Source Type: Journal    
DOI: 10.2307/2658165     Document Type: Article

References (72)

1. 1 Baehr v. Lewin, 852 P.2d 44 (HI, 1993). The case has since been renamed Baehr v. Miike.
2. 2 HI Const., Art. I, Sec. 5, provides that "[n]o person shall . . . be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry."
3. 3 Baehr v. Miike, Dkt. No. 91-1394.
4. 4 Defense of Marriage Act, 110 Stat. 2419 (1996).
5. 5 Jeffrey Schmalz, "In Hawaii, Step Toward Legalized Gay Marriage" New York Times, 7 May 1993, A14.
6. 6 Ibid.
7. 7 Henson, "Will Same-Sex Marriages be Recognized?" in "Sister States: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin," University Louisville Journal of Family Law 32 (Summer 1994): 551, 591.
8. 8 Two exceptions are Feldmeier, "Federalism and Full Faith and Credit: Must States Recognize Out-of-State Same Sex Marriages?" Publius 107 (Fall 1995): 25; and Brown, "Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage," Southern California Law Review 745 (May 1995).
9. 8 Two exceptions are Feldmeier, "Federalism and Full Faith and Credit: Must States Recognize Out-of-State Same Sex Marriages?" Publius 107 (Fall 1995): 25; and Brown, "Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage," Southern California Law Review 745 (May 1995).
10. 9 On tariff nullification, see John C. Calhoun, Fort Hill Address (26 July 1831). On secession, see Jefferson Davis, Message to the Confederate Congress (29 April 1861).
11. 9 On tariff nullification, see John C. Calhoun, Fort Hill Address (26 July 1831). On secession, see Jefferson Davis, Message to the Confederate Congress (29 April 1861).
12. 10 For an early exposition on the nature of the Union by the Court, see Chisholm v. Georgia, 2 Dall. (2 U.S.) 419 (1793). For key Marshall-era opinions on the matter see Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 (1816); Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821); McCulloch v. Maryland, 4 Wheat (17 U.S.) 316 (1819).
13. 11 James Bryce, The American Commonwealth, 2 vols. (London: Macmillan & Co., 1889), 1:338.
14. 12 Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments (Boston: C.C. Little & J. Brown, 1841).
15. 13 Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca: Cornell University Press, 1985), chap. 2.
16. 14 See Va. Code Ann. sec. 20-40 (1950).
17. 15 Baade, "Marriage and Divorce in American Conflicts Law: Governmental-Interests Analysis and the Restatement (Second)," Columbia Law Review 72 (February 1972): 329, 331.
18. 16 See, for example, In re Triggs Estate, 426 P.2d 637 (AZ 1967) (common law marriage); Mangrum v. Mangrum, 220 S.W.2d 406 (KY 1949) (age); Leszinske v. Poole, 798 P.2d 1049 (NM Ct. App. 1990) (kinship); In re Perez' Estate, 219 P.2d 35 (CA 1950) (health); State v. Fenn, 92P. 417 (WA 1907) (bigamy); State v. Bell, 66 TN 9, 32 Am. Rep. 549 (1872) (race); Loving v. Virginia, 388 U.S. 1 (1967) (race).
19. 17 Alabama, Alaska, Colorado, Iowa, Louisiana, Maryland, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Washington. The common law of many of these states, however, does follow the general rate that a marriage, if valid where solemnized, is to be recognized in that state unless, in some cases, it is against the state's public policy.
20. 18 California, Florida [Op. Atty. Gen.], Hawaii, Idaho, Kansas, Kentucky, Michigan, Nebraska, New Jersey, New Mexico, South Carolina, South Dakota, Utah, Wyoming. The common law of some of these states holds to this rule even if the couple went to another state to get married to avoid the laws of the residency state.
21. 19 Arizona, Arkansas, Connecticut, Delaware, District of Columbia, Georgia, Illinois, Indiana, Maine, Massachusetts, Mississippi, New Hampshire, North Dakota, Vermont, West Virginia, Wisconsin. For these states to recognize a marriage solemnized in another state, the couple married in that other state must have actually resided there at the time of the marriage.
22. 20 In re Dalip Singh Bir's Estates, 188 P.2d 499 (1948).
23. 21 In re Mays Estate, 114 N.E.2d 4 (1953). See also In re Estate of Loughmiller, 629 P.2d 156 (KS 1981), marriage of first cousins accepted if valid where celebrated - case involving settlement of estate; Contra, In re Vetos Estale, 170 P.2d 183 (UT 1946), letters of administration sought - held: cannot leave state to evade local rules against common law marriages.
24. 22 Baade, "Marriage and Divorce," 330, n. 21. The Supreme Court has held that the domestic obligation of full faith and credit does not extend to judgments of foreign countries, which are purely governed by the doctrine of comity. Hilton v. Guyot, 159 U.S. 113 (1895). With the increasing trend toward the intemationalization of rights through human rights conventions, this situation could change.
25. 23 U.S. Const. Art. IV, Sec. 1.
26. 24 The history of the full faith and credit clause, which I draw upon below, is outlined by Justice Robert Jackson, "Full Faith and Credit - The Lawyer's Clause of the Constitution," Columbia Law Review 45 (January 1945): 1; see also Radin, "The Authenticated Full Faith and Credit Clause: Its History," Illinois Law Review 39 (May-June 1944): 1; Corwin, "The 'Full Faith and Credit Clause'," University of Pennsylvania Law Review 81 (February 1933): 371; Nadelmann, "Full Faith and Credit," Michigan Law Review 56 (November 1957): 33; Cheatam, "Federal Control of Conflicts of Laws," Vanderbilt Law Review 6 (April 1953): 581; Sumner, "The Full Faith and Credit Clause - Its History and Purpose," Oregon Law Review 34 (June 1955): 224.
27. 25 U.S. Articles of Confederation, Art. IV.
28. 26 Max Ferrand, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911), 447.
29. 27 Ibid., 448.
30. 28 Ibid.
31. 29 Ibid.
32. 30 Jackson, "Full Faith and Credit," 6.
33. 31 28 U.S.C.A. Sec. 1738 (1982).
34. 32 See Erie v. Tompkins, 304 U.S. 64, 78 (1938), "Whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern."
35. 33 The cross recognition of same-sex marriages might be such a disfavored area. But see Alaska Packers Ass'n v. Industrial Acc. Comm'n, 294 U.S. 532 (1935), ("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."), upholding decision by California courts that California rather than Alaska law applied in a dispute over an accident claim where employment contract was entered into in California but injury took place in Alaska.
36. 34 Corwin, "The 'Full Faith and Credit Clause'," 388, n. 36.
37. 35 Robert M. Cover, Justice Accused: Anti-Slavery and the Judicial Process (New Haven: Yale University Press, 1975), 85.
38. 36 Pink v. A.A.A. Highway Express, Inc., 314 U.S. 201, 210 (1941), holding Georgia law controlled obligations of Georgia residents who were policy holders in an insolvent New York insurance company and that the Georgia courts did not have to defer to a New York statute which potentially affected the disposition of the insolvency. See also Alaska Packers Ass'n (1935).
39. 37 Fauntleroy v. Lum, 210 U.S. 230 (1908).
40. 38 Specifically, the Court held that the Mississippi courts could not refuse to give effect to a judgment of a Missouri court on an action on a gambling transaction in cotton futures despite the fact that the transaction took place in Mississippi and was a misdemeanor in Mississippi when it occurred there. This decision is relevant to the cross recognition of same-sex marriages as currently six states (Arkansas, Kansas, Missouri, Montana, Tennessee, and Texas) have laws specifically prohibiting oral or anal intercourse between people of the same sex. Oral and anal intercourse is prohibited by statute for all people in seventeen states. In implicit agreement with Fauntleroy, Jackson observed that "[i]t is hard to see how the full faith and credit clause has any practical meaning as to statutes if the Court should adhere to the statement that 'a state is not required to enforce a law obnoxious to its public policy.'" (citing Griffen v. McCoach, 313 U.S. 498, 507 [1941]). Jackson, "Full Faith and Credit," 27, n. 36.
41. 39 313 U.S. 498, 507 (1941), holding that Texas courts were not obligated to enforce a life insurance contract which was valid in New York, where it was executed, because the beneficiary of the contract had no insurable interest in it and the enforcement of such insurance contracts was obnoxious to the public policy of the state of Texas. See also Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), holding in part that Dred Scott's status as a slave was to be determined by Missouri law as interpreted by Missouri courts regardless of what Scott's status may have been while he was living in another state; Bradford Electric Light v. Clapper, 286 U.S. 145, 161 (1932), ("I can find nothing in the history of the full faith and credit clause, or the decisions under it, which lends support to the view that it compels any state to subordinate its domestic policy with respect to persons and their acts within its borders, to the laws of any other." [Harlan Fiske Stone, concurring]), after interest balancing, holding that the compensation act of Vermont - where the injured party entered into an employment contract with his employer - would prevail over a conflicting compensation statute in effect in New Hampshire, where the injury took place and the suit was brought. Explicitly, in these situations, the issue is framed as a duel of inconsistent state interests or policies.
42. 40 See generally Jackson, "Full Faith and Credit," for others.
43. 41 Williams v. North Carolina, 325 U.S. 226 (1945).
44. 42 In Williams II, the court was faced with a situation in which the defendant had been convicted of bigamy in North Carolina after North Carolina refused to recognize the validity of the divorce he entered into in Nevada. The couple involved in the case had lived in North Carolina prior to the divorce, went to Nevada to get divorced from their prior spouses and then married there (they stayed in a motor lodge in Nevada for six weeks immediately prior to the divorce, a time period required for the parties to be within the state for the Nevada court to have jurisdiction over them according to Nevada law). They then returned to North Carolina to live as husband and wife.
45. 43 Jackson, "Full Faith and Credit," 13.
46. 44 Hughes v. Fetter, 341 U.S. 609 (1951), holding that under the full faith and credit clause, Wisconsin courts were obligated to enforce the Illinois Wrongful Death Act when Wisconsin resident brought an action in a Wisconsin court for a death which had occurred in Illinois despite a Wisconsin statute declaring that actions could only be brought in Wisconsin courts for deaths occurring within Wisconsin.
47. 45 That clause reads: "No person held in Service or Labour in one State, under the Laws thereof, escaping into another, shall; in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." U.S. Const., Art IV, Sec. 2.
48. 46 Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (NY: Harper Torchbooks, 1967), 85.
49. 47 David M. Potter, The Impending Crisis, 1848-1861 (New York: Harper Torchbooks, 1976), 131. See also Harold M. Hyman & William W. Wiecek, Equal Justice Under Law: Constitutional Development 1835-1875 (New York: Harper & Row, 1982), 195.
50. 47 David M. Potter, The Impending Crisis, 1848-1861 (New York: Harper Torchbooks, 1976), 131. See also Harold M. Hyman & William W. Wiecek, Equal Justice Under Law: Constitutional Development 1835-1875 (New York: Harper & Row, 1982), 195.
51. 48 Hyman & Wiecek, Equal Justice, 95. See Harold Holzer, ed., The Lincoln-Douglas Debates (NY: HarperCollins, 1993): Debate at Alton, Ill. (15 October 1858); 350, 353-54, 341-42; Debate at Ottawa, Ill., (21 August 1858), 74-77; Debate at Freeport, Ill. (27 August 1858) 98-103; Debate at Charleston, Ill. (18 September 1858), 212-13. 227-28; Debate at Quincy, Ill. (13 October 1858). 285-87, 296, 319-20. See also Lincoln's "House Divided" speech (Springfield, Ill., 17 June 1858).
52. 48 Hyman & Wiecek, Equal Justice, 95. See Harold Holzer, ed., The Lincoln-Douglas Debates (NY: HarperCollins, 1993): Debate at Alton, Ill. (15 October 1858); 350, 353-54, 341-42; Debate at Ottawa, Ill., (21 August 1858), 74-77; Debate at Freeport, Ill. (27 August 1858) 98-103; Debate at Charleston, Ill. (18 September 1858), 212-13. 227-28; Debate at Quincy, Ill. (13 October 1858). 285-87, 296, 319-20. See also Lincoln's "House Divided" speech (Springfield, Ill., 17 June 1858).
53. 48 Hyman & Wiecek, Equal Justice, 95. See Harold Holzer, ed., The Lincoln-Douglas Debates (NY: HarperCollins, 1993): Debate at Alton, Ill. (15 October 1858); 350, 353-54, 341-42; Debate at Ottawa, Ill., (21 August 1858), 74-77; Debate at Freeport, Ill. (27 August 1858) 98-103; Debate at Charleston, Ill. (18 September 1858), 212-13. 227-28; Debate at Quincy, Ill. (13 October 1858). 285-87, 296, 319-20. See also Lincoln's "House Divided" speech (Springfield, Ill., 17 June 1858).
54. 49 New York, Massachusetts, Ohio, Vermont, Maine, Pennsylvania. Hyman and Wiecek, Equal Justice, 95-96. Note the similar positive law limitations adopted by states in the marriage context in an effort to avoid recognition of certain marriages held to be contrary to public policy.
55. 50 King's Bench, 1772. Story begins the analysis of slavery in his influential conflicts treatise with a discussion of Somerset 's Case. Story, Conflicts, 92. For a fuller account of the case than that offered here, see William M. Wiecek, "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World," University of Chicago Law Review 42 (Fall 1974): 86.
56. 50 King's Bench, 1772. Story begins the analysis of slavery in his influential conflicts treatise with a discussion of Somerset 's Case. Story, Conflicts, 92. For a fuller account of the case than that offered here, see William M. Wiecek, "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World," University of Chicago Law Review 42 (Fall 1974): 86.
57. 51 See Hyman and Wiecek, Equal Justice, 88. Wiecek refers to the doctrine that I call the holding of the case as "neo-Somerset" a simplified gloss on the actual holding of the King's Bench. Wiecek, "Somerset," 118. As he himself discusses, however, from the moment Somerset was decided the perceived holding was enormously influential with judges and with political actors. It makes sense here to present the holding of the case as it was understood by relevant political actors rather than as an abstract, legalistic construction.
58. 51 See Hyman and Wiecek, Equal Justice, 88. Wiecek refers to the doctrine that I call the holding of the case as "neo-Somerset" a simplified gloss on the actual holding of the King's Bench. Wiecek, "Somerset," 118. As he himself discusses, however, from the moment Somerset was decided the perceived holding was enormously influential with judges and with political actors. It makes sense here to present the holding of the case as it was understood by relevant political actors rather than as an abstract, legalistic construction.
59. 51 See Hyman and Wiecek, Equal Justice, 88. Wiecek refers to the doctrine that I call the holding of the case as "neo-Somerset" a simplified gloss on the actual holding of the King's Bench. Wiecek, "Somerset," 118. As he himself discusses, however, from the moment Somerset was decided the perceived holding was enormously influential with judges and with political actors. It makes sense here to present the holding of the case as it was understood by relevant political actors rather than as an abstract, legalistic construction.
60. 52 This discussion of the Aves case is largely based on the account of Levy, Commonwealth, 62-68; and Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981). Those interested in an exhaustive treatment of other similar cases should consult Cover, Justice Accused, chap. 5, and the more comprehensive presentation of Finkelman.
61. 52 This discussion of the Aves case is largely based on the account of Levy, Commonwealth, 62-68; and Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981). Those interested in an exhaustive treatment of other similar cases should consult Cover, Justice Accused, chap. 5, and the more comprehensive presentation of Finkelman.
62. 53 As Jeremy Rabkin has suggested to me, the internationalist approach adopted by Mansfield in Somerset was expedient given that the British colony from which the slave was brought to England was not a sovereign nation autonomous from the laws and government of the British Isles.
63. 54 The Antelope, 23 U.S. 66 (1825), involved the disposition of slaves under the control of the U.S. government following a federal revenue cutter's seizure of a privateer that had captured a slave ship. The Antelope.
64. 35 Dred Scott v. Sandford, 60 U.S. 393 (1857). See also Strader v. Graham, 51 U.S. 82 (1851), forum state policy dictates slave status when slave domiciled outside of forum state returns to that state.
65. 56 See discussion of Loving v. Virginia, 388 U.S. 1 (1967) in this article.
66. 57 See generally Finkelman, An Imperfect Union; Wiecek, "Somerset" 131, n. 54.
67. 58 See, for example, Meyer v. Nebraska, 262 U.S. 390, 399 ( 1923); Zablocki v. Redhail, 434 U.S. 374, 383 (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965).
68. 59 Loving v. Virginia, 388 U.S 1 (1967).
69. 60 Va. Code Ann. Sec. 20-59 (1950): "If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."
70. 61 Va. Code Ann. Sec. 20-58 (1950): "If any white person and colored person shall go out of this state, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, tbey shall be punished as provided in Sec. 20-59, and the marriage shall be governed by the same law as if had been solemnized in this state. The fact of their cohabitation here as man and wife shall be evidence of their marriage."
71. 62 Robert F. Drinan, S.J., "The Loving Decision and the Freedom to Marry," Ohio State Law Journal 29 (Winter 1968): 358.
72. 63 See generally, Samuel Beer. "The Modernization of American Federalism," Publius, 3 (Fall 1973), arguing that nationalization of certain government functions stimulates the trend toward the nationalization of additional, related functions.