Full faith and credit for status records: A reconsideration of gardiner

California Law Review

Volumn 97, Issue 5, 2009, Pages 1419-1457

  Gebhardt, Shawn ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 73949101796     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (318)

1. U.S. CONST, art. IV, § 1.
2. See, e.g., David W. Dunlap, Congressional Bills Withhold Sanction of Same-Sex Unions, N.Y. TIMES, May 9, 1996, at B15;
3. Joanna Grossman, The Proposed Marriage Protection Act: Why It May Be Unconstitutional, July 27, 2004, http://writ.news.findlaw.com/grossman/ 20040727.html;
4. Adam Liptak, Bans on Interracial Unions Offer Perspective on Gay Ones, N.Y. TIMES, Mar. 17, 2004, at A1;
5. Dahlia Lithwick, Full Faith and Credulous, SLATE, Feb. 10, 2004, http://www.slate.com/id/2095259/.
6. U.S. CONST. art. IV, § 1.
7. See M'Elmoyle v. Cohen, 38 U.S. 312 (1839);
8. Mills v. Duryee, 11 U.S. (7 Cranch) 481, 483(1813).
9. See WILLIAM L. REYNOLDS & WILLIAM M. RICHMAN, THE FULL FAITH AND CREDIT CLAUSE: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 6 (2005) (describing "an ironclad rule of preclusion");
10. William L. Reynolds, The Iron Law of Full Faith and Credit, 53 MD. L. REV. 412, 413-14 (1994) [hereinafter The Iron Law] (describing the basic rule of the Clause as an "Iron Law").
11. See Nevada v. Hall, 440 U.S. 410, 412-13 (1979).
12. See Baker v. Gen. Motors Co., 522 U.S. 222, 232 (1998) ("[T]he Full Faith and Credit Clause does not compel '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.'") (quoting Pac. Employers Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493, 501 (1939)).
13. 42 P.3d 120 (Kan. 2002).
14. See id.
15. Id. at 137 ("To conclude that J'Noel is the opposite sex of Marshall would require that we rewrite [Kansas law].").
16. Id.
17. See Mubarak Dahir, Genetics vs. Love, ADVOCATE, Oct. 10, 2000;
18. John Hanna, Kansas Supreme Court Says Transsexual's Marriage is Invalid, TOPEKA CAPITAL-JOURNAL ONLINE, Mar. 15, 2002, http://www.cjonline.com/stories/031502/bre-transmarrig.shtml;
19. David E. Thigpen, Domestic Disputes, TIME, Mar. 4, 2002, at 53;
20. David Usborne, Sex-change Widow's Fortune Hangs on Court's Gender Ruling, INDEPENDENT (London), Jan. 20, 2002, at 16;
21. Transsexual Marriages Rejected in Kansas, THOMAS MORE LAW CENTER, Mar. 19, 2002, available at http://www.thomasmore.org/qry/page.taf?id=63&function=detail&sbtblct- uid1=70.
22. 28 U.S.C. § 1738C (1996).
23. See, e.g., Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 CREIGHTON L. REV. 147 (1998);
24. Shana Brown, Sex Changes and "Opposite-Sex" Marriage: Applying the Full Faith and Credit Clause to Compel Interstate Recognition of Transgendered Persons' Amended Legal Sex for Marital Purposes, 38 SAN DIEGO L. REV. 1113 (2001);
25. Barbara J. Cox, Adoptions by Lesbian and Gay Parents Must Be Recognized by Sister States under the Full Faith and Credit Clause Despite Anti-Marriage Statutes that Discriminate Against Same-Sex Couples, 31 CAP. U. L. REV. 751 (2003) [hereinafter Cox, Adoptions];
26. Julie A. Greenberg, When Is a Same-Sex Marriage Legal? Full Faith and Credit and Sex Determination, 38 CREIGHTON L. REV. 289 (2005);
27. Nancy J. Knauer, The September 11 Relief Efforts and Surviving Same-Sex Partners: Reflections on Relationships in the Absence of Uniform Legal Recognition, 26 WOMEN'S RTS. L. REP. 79 (2005);
28. Mark D. Rosen, Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires, 90 MINN. L. REV. 915 (2006);
29. Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 STAN. J. C.R. & C.L. 1 (2005);
30. Mark Strasser, Marriage, Transsexuals, and the Meaning of Sex: On DOMA, Full Faith and Credit, and Statutory Interpretation, 3 HOUS. J. HEALTH L. & POL'Y 301 (2003).
31. Julie A. Greenberg and Marybeth Herald observe that the First Restatement of Conflict of Laws defined "status" as "a legal personal relationship, not temporary in its nature" (emphasis added), and that the term includes both legal relationships with other people as well as an "individual permanent condition created by law." Julie A. Greenberg & Marybeth Herald, You Can't Take It With You: Constitutional Consequences of Interstate Gender-Identity Rulings, 80 WASH. L. REV. 819, 849 (2005).
32. In re Estate of Gardiner, 22 P.3d 1086, 1091 (Kan. Ct. App. 2001).
33. Id.
34. Id.
35. Id. Gender dysphoria is a psychiatric classification used to describe a persistent discomfort involving one's sex.
36. See AMERICAN PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 532-38 (4th ed. 1994).
37. See Jodi Wilgoren, Suit Over Estate Claims a Widow Is Not a Woman, N.Y. TIMES, Jan. 13, 2002, § 1, at 18 ("I am anatomically, biologically, socially, and, most important, spiritually, female.").
38. Gardiner, 22 P.3d at 1092.
39. Id.
40. Id.
41. WIS. STAT. § 69.15(4)(b) (2000) (emphasis added).
42. Gardiner, 22 P.3d at 1107.
43. Id.
44. Id. at 1092.
45. Id.
46. Wilgoren, supra note 20;
47. Park College is now Park University. See http://www.park.edu/int/ overview.pdf (last visited Sept. 14, 2009).
48. Gardiner, 22 P.3d at 1091.
49. Id.
50. Id. at 1090.
51. Id.;
52. see also KAN STAT. ANN. § 56-6a201, et seq. (2000).
53. Petition for Writ of Certiorari, Gardiner v. Gardiner, 537 U.S. 825 (2002) (No. 01-1853), at 4-5.
54. Gardiner, 22 P.3d at 1090.
55. Id.;
56. see also KAN. STAT. ANN. § 23-101 (2000).
57. Gardiner, 22 P.3d at 1092.
58. Id.
59. Id.
60. Id.
61. Id.
62. See id. at 1092-1106.
63. Id. at 1107.
64. Id.
65. Id. at 1110.
66. Id.
67. See KAN. STAT. ANN. § 65-2422c (2006) (only authorizing minor corrections to be made under
68. KAN. ADMIN. REGS. § 28-17-20);
69. KAN. ADMIN. REGS. § 28-17-20(b)(1)(A)(i) (2006) (implementing
70. KAN. STAT. ANN. § 64-2422c and only permitting birth certificate amendments later than ninety days after the filing of the original if the registrant's sex was incorrectly recorded or if a physiological or anatomical change occurred).
71. Gardiner, 22 P.3d at 1108-10.
72. In re Estate of Gardiner, 42 P.3d 120, 122 (Kan. 2002).
73. Id. at 125-26.
74. See KAN. STAT. ANN. § 23-115 (2001 Supp.).
75. Gardiner, 42 P.3d at 124.
76. Id.;
77. see also Corbett v. Corbett, 2 All E.R. 33, 48 (1970) (holding that for purposes of determining one's legal sex, operative intervention should be ignored);
78. see also Littleton v. Prange, 9 S.W.3d 223, 224 (Tex. App. 1999) (holding that sex is immutably fixed "by our Creator at birth").
79. Gardiner, 42 P.3d at 124;
80. see M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. App. Div. 1976) (holding that one's legal sex must conform to one's anatomical features and gender or psychological sex);
81. see also In re Kevin (2001) 28 Fam. L.R. 158 (Austl.) (holding the law treats post-operative transsexuals as their newly-assigned sex, assuming surgery is successful).
82. Gardiner v. Gardiner, 537 U.S. 825 (2002).
83. See In re Estate of Gardiner, 22 P.3d 1086, 1093 (Kan. Ct. App. 2001).
84. Id. at 1107.
85. Id.
86. See, e.g., Restatement (Second) of Conflict of Laws, § 109 cmt. C (1988) (noting that the Clause does not require enforcement of a sister state judgment which remains subject to modification in the sister state);
87. 30 Am. Jur. 2d Executions, § 669 ("Since a judgment rendered by the court of another state is accorded full faith and credit to the same extent, and with as broad a scope, as it has by law or usage in the courts of the state where the judgment was rendered, its force and effect must be determined by the laws of such state");
88. 30 Am. Jur. 2d Executions, § 689 (noting that the effect of the Clause is to "require that the doctrine of res judicata be applied in one state to a judgment rendered in another state to the same extent as it is applied in the state of its rendition," therefore "[a] state must, regardless of policy objections, recognize the judgment of another state as res judicata, even though the action or proceeding which resulted in the judgment could not have been brought under the law or policy of the forum state").
89. See also Gardiner, 22 P.2d at 1086 (citing State v. Pope, 927 P.2d 503, 511 (Kan. Ct. App. 1996);
90. Keller v. Guernsey, 608 P.2d 896, 898-99 (Kan. 1980) ("[T]he general rule is that a judgment rendered by a court of one state is entitled, in the courts of another state, to recognition, force or effect to the same extent and with as broad a scope as it has by law or usage in the courts of the state where the judgment was rendered.").
91. WIS. STAT. § 69.21(1)(c) (2000).
92. Gardiner, 22 P.3d at 1109.
93. See Petition for Writ of Certiorari, Gardiner, 22 P.3d 1086 (2001) (No. 85030) (noting that the trial court judge rejected Gardiner's full faith and credit argument by arguing "[I]f I gave full faith and credit, all I would do is give full faith and credit to the fact that [the Wisconsin court] authorized⋯ a change in her birth certificate⋯ if [the court] gave full faith and credit, it would have no impact on the findings of the Court today.");
94. James D. Sumner, Jr., The Full-Faith-and-Credit Clause: Its History and Purpose, 34 OR. L. REV. 224, 230 (1955) (noting that in the few cases decided under the Articles' Clause, the courts "held that the clause was nothing more than a rule of evidence");
95. Ralph U. Whitten, The Constitutional Limitations on State Choice of Law: Full Faith and Credit, 12 MEM. ST. U. L. REV. 1, 27 (1981-82) (arguing the Articles' Clause was "designed to require only that sister state judgments be admitted into evidence as conclusive proof of their own existence and contents").
96. Mills v. Duryee, 11 U.S. (7 Cranch) 481, 484 (1813).
97. Joseph Story, COMMENTARIES, § 1304 (1891).
98. Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 304 (1992).
99. Robert H. Jackson, Full Faith and Credit: The Lawyer's Clause of the Constitution, 45 COLUM.L. REV. 1, 26(1945).
100. Ralph U. Whitten once argued that the Framers' original understanding of the Full Faith and Credit Clause might differ from our own in part because whereas there was once "a sharp distinction drawn between law making, or legislation, and law application, or adjudication," the lines between these functions have blurred over time. Whitten, supra note 62, at 67. Whitten asserted that state judges might now behave in ways once only permissible for state legislators, and that therefore some common law judicial decisions might be properly considered acts rather than judgments for full faith and credit classification purposes.
101. Id. at 67-69.
102. While my goals differ greatly from Whitten's, his observation is nevertheless valuable. I assert that the blurring between law implementation, or execution, and its two sister functions requires a reexamination of our understanding of the Full Faith and Credit Clause.
103. See 2 SAMUEL JOHNSON, A DICTIONARY OF ENGLISH LANGUAGE (1755), available at http://www.archive.org/details/dictionaryofengl02johnuoft.
104. Johnson's dictionary defines record (in its verb form) as "1. To register any thing, so that its memory may not be lost ⋯. 2. To celebrate; to cause to be remembered solemnly" and record (in its noun form) as "Register; authentick memorial." Johnson lists examples of the noun's usage, including "The king made a record of these things, and Mardocheus wrote thereof (citing the biblical book of Esther) and "Though the attested copy of a record be good proof, yet the copy of a copy never so well attested will not be admitted as a proof in judicature" (citing John Locke).
105. Id. Similarly, Johnson defines recorder as "1. One whose business is to register any events ⋯. 2. The keeper of the rolls in a city." All of these definitions contemplate a broad interpretation of the term.
106. Id.
107. See Whitten, supra note 62, at 57 ("At the time, statutes, records (such as deeds), and judgments presented difficult problems of authentication and proof for a new federal nation ⋯. Statutes, in the view of many decisions, had to be proved by authenticated copy; judgments presented similar problems of authentication and admissibility.").
108. See Mills v. Duryee, 11 U.S. (7 Cranch) 481, 483 (1813).
109. See Whitten, supra note 62, at 57;
110. see also Leonard S. Goodman, Mandamus in the Colonies: The Rise of the Superintending Power of American Courts, 2 AM. J. LEGAL HIST. 1, 6 (1958) (discussing the case of Basford v. Proprietors of Kingston, a 1745 New Hampshire case involving the recording of a land patent where "the Kingston town clerk refused to: 'Enter and Record in the Records of the Said Town ⋯ according to the Custom in Such Cases'").
111. Sumner, supra note 62, at 242. Though it was not his focus, Sumner recognized the pre-constitutional tripartite distinction between judicial, legislative, and executive actions, noting that "[t]he Connecticut act did not pertain to executive or legislative acts of other colonies."
112. Id. at 227.
113. See id. at 227-28 (noting that such acts were passed in Massachusetts, Connecticut, Maryland, and South Carolina).
114. Kurt H. Nadelmann, Full Faith and Credit to Judgments and Public Acts: A Historical-Analytical Reappraisal, 56 MICH. L. REV. 33, 39 (1957).
115. Id.
116. Albert S. Abel, Administrative Determinations and Full Faith and Credit, 22 IOWA L. REV. 461, 464 (1937).
117. Id. at 464-65.
118. Id. at 465.
119. Sumner, supra note 62, at 230.
120. Id.
121. See BLACK'S LAW DICTIONARY (7th ed. 1999).
122. 3 MAX FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, at 601 (1911).
123. Sumner, supra note 62, at 231.
124. FARRAND, supra note 82, at 445.
125. Abel, supra note 76, at 468 (citing FARRAND, supra note 82, at 445-48).
126. See FARRAND, supra note 82, at 489.
127. See Sumner, supra note 62, at 235 (citing THE FEDERALIST NO. 42, at 198 (James Madison) (1857)).
128. Id. at 234.
129. U.S. CONST. art. IV, § 1.
130. See Edward S. Corwin, The Full Faith and Credit Clause, 81 U. PA. L. REV. 371, 373 (1933) (arguing that the Constitution's Clause differs from the Articles' Clause in that "the 'acts' and 'records' to which [the Constitution] extends full faith and credit are not confined to those of 'courts and magistrates.'");
131. Sumner, supra note 62, at 230 (stating that the Articles' Clause "was certainly a step in the right direction, [but] it did not go far enough in that full faith and credit was demanded only for judicial proceedings," whereas the Framers "gave some thought to the respect to be paid the official acts of the states");
132. Whitten, supra note 62, at 31 (arguing that the Articles' Clause "require[d] full faith and credit only to the records, acts and judicial proceedings of the courts and magistrates of every other state, while the Constitution includes 'public acts' within its command'").
133. Whitten, supra note 62, at 31.
134. Sumner, supra note 62, at 230.
135. Corwin, supra note 90, at 373.
136. See U.S. CONST. art. IV.
137. Id. As a general matter, there is a history of protecting rights and preserving the availability of remedies under the Clause. This tradition may have taken hold as a result of the Clause's being rooted in the Framers' attempts to prevent the injustice caused by debt skippers. The Clause therefore seems to be successfully invoked more often to protect individual rights than to quash them. In Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980), for example, the Supreme Court held that full faith and credit principles do not preclude a state from awarding an injured person workers' compensation even though another state had already done so.
138. See also Carroll v. Lanza, 349 U.S. 408, 413-14 (1955). This concern was also present in Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493 (1939), in which the Court ruled that a sister state's interest in compensation for its employees who are temporarily abroad cannot override the forum's interests in the bodily safety and economic protection of workers located within the forum. Pacific, 306 U.S. at 504-05.
139. The Court's finding that the forum's interest in capping the potential liability of companies transacting business within the forum is not strong enough to prevent other states from giving more generous recovery presents a policy that might be generalized from economic rights to personal rights. The fact that worker's compensation awards are typically made in quasi-judicial administrative proceedings greatly strengthens the relevance of these cases to the uncertain status of records, which are also the product of executive actions.
140. Laycock, supra note 65, at 259;
141. see also Jackson, supra note 66, at 17 (arguing that the Full Faith and Credit Clause is "among those measures which would guard the new political and economic union against the disintegrating influence of provincialism in jurisprudence");
142. Sumner, supra note 62, at 242 (explaining that the Clause "was placed with other provisions which were designed to establish one country with equal privileges being accorded the citizens of each state throughout the rest of the United States").
143. See Pacific, 306 U.S. at 501 (characterizing the purpose of the Clause as "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 Pacific Court presumably omitted any reference to records because no records were in dispute in that case.
144. See Sumner, supra note 62, at 242.
145. Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (quoting Milwaukee County v. M.E. White Co., 296 U.S. 268, 277 (1935)).
146. See, e.g., Allstate Ins. Co. v. Hague, 449 U.S. 302, 323 (1981) (the Clause should invalidate a state court's choice of law if the choice "threatens the federal interest in national unity by unjustifiably infringing upon the legitimate interests of another State");
147. Thomas v. Wash. Gas Light Co., 448 U.S. 261, 272 (1980) (the purpose of the Clause is to prevent the "parochial entrenchment on the interests of other States");
148. Nevada v. Hall, 440 U.S. 410, 424 n.24 (1979) (the Clause should prohibit activity which "poses [a] substantial threat to our constitutional system of cooperative federalism");
149. Carroll v. Lanza, 349 U.S. 408, 413 (1955) (the Clause should invalidate "any policy of hostility to the public Acts" of another state).
150. Milwaukee County, 296 U.S. at 277.
151. See infra notes 148-164 and accompanying text.
152. Baker, 522 U.S. at 232 (quoting Milwaukee County v. M.E. White Co., 296 U.S. 268, 277(1935)).
153. Sumner, supra note 62, at 244-49.
154. Id.
155. This is a modification of the term "Effects Clause," used by Larry Kramer. Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L.J. 1965, 2001 (1997). I refer to subclauses so as to distinguish the parts of the Clause from the Clause itself. Recall that Madison opined that the Effects Subclause was the Clause's primary innovation; Kramer points out that Madison thought the Articles' Clause left its obligation too ill-defined to be followed, and left too much room for crafty native judges to escape its mandate.
156. Id. at 2003;
157. see also THE FEDERALIST NO. 42 (James Madison) (1857).
158. See Mills v. Duryee, 11 U.S. (7 Cranch) 481, 484 (1813).
159. Act of May 26, 1790, 1 Stat. 122 (recodified as 28 U.S.C. § 1738).
160. See Mills, 11 U.S. (7 Cranch) at 484;
161. see also Story, supra note 64, § 1313. Story states: It has been settled ⋯ that this enactment does declare the effect of the records, as evidence, when duly authenticated. It gives them the same faith and credit as they have in the State court from which they are taken. If in such court they have the faith and credit of the highest nature, that is to say, of record evidence, they must have the same faith and credit in every other court. So, that Congress have declared the effect of the records, by declaring, what degree of faith and credit shall be given to them. If a judgment is conclusive in the State where it is pronounced, it is equally conclusive everywhere. If re-examinable there, it is open to the same inquiries in every other State. It is, therefore, put upon the same footing as a domestic judgment.
162. Id.
163. Mills, 11 U.S. (7 Cranch) at 484.
164. See Kramer, supra note 106, at 2005.
165. See id.
166. Act of Mar. 27, 1804, 2 Stat. 298 (recodified as 28 U.S.C. § 1739) (emphasis added).
167. See 28 U.S.C. § 1738 (2000).
168. Oliver P. Field, Judicial Notice of Public Acts Under the Full Faith and Credit Clause, 12 MINN. L. REV. 439, 443 n.12 (1928) (observing the language of the 1804 Act is "sufficiently broad to include acts of legislatures").
169. Laycock argues that both the original and the current implementing statutes demand that the forum state give the same effect to a sister state's law, whether act, record, or judgment, as would be given by that sister state. Laycock, supra note 65, at 22.
170. Baker v. Gen. Motors Corp., 522 U.S. 222 (1998);
171. see also Matsushita v. Epstein, 516 U.S. 367, 373 (1996);
172. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 (1982) ("In our system of jurisprudence the usual rule is that merits of a legal claim once decided in a court of competent jurisdiction are not subject to redetermination in another forum.").
173. Baker, 522 U.S. at 232-33;
174. see also Nevada v. Hall, 440 U.S. 410, 421 (1979) ("A judgment entered in one State must be respected in another provided that the first State had jurisdiction over the parties and the subject matter.");
175. Williams v. North Carolina, 325 U.S. 226, 228 (1945) (holding that full faith and credit is only demanded when "the jurisdiction of the court in another state is not impeached, either as to the subject matter or the person") (quoting James Kent, 1 COMMENTARIES ON AMERICAN LAW 261 (2d ed. 1832)).
176. ROGER C. CRAMTON ET AL., CONFLICT OF LAWS 477 (7th ed. 2006).
177. I examine these principles in greater detail in Part IIIC-3, infra.
178. Lea Brilmayer, Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context, 70 IOWA L. REV. 95, 98 (1984).
179. Id.
180. See id.
181. See Baker v. Gen. Motors Co., 522 U.S. 222, 233 (1998) (noting the Clause "ordered submission ⋯ even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it") (quoting Estin v. Estin, 334 U.S. 541, 546 (1948)).
182. Fauntleroy v. Lum, 210 U.S. 230,233 (1908).
183. Id. at 239.
184. See Coghill v. Boardwalk Regency Corp., 396 S.E.2d 838, 839 (Va. 1990) (citing Fauntleroy in holding that the Clause bars a Virginia court from collaterally attacking a sister state judgment, even if based on error of law);
185. Reynolds, The Iron Law, supra note 5, at 413-14 (indicating the Fauntleroy opinion articulates the basic "Iron Law" required by the Clause).
186. See Baker, 522 U.S. at 234 (citing Barber v. Barber, 323 U.S. 77 (1944)).
187. Id. at 235.
188. Id. at 239 (citing Fall v. Eastin, 215 U.S. 1 (1909)). But even here, the Baker Court acknowledged that although the forum in Fall did not have to enforce the sister state judgment, such a judgment would nevertheless preclusively adjudicate the rights to the land with respect to the parties. This reasoning, if extended to records, would seem to prohibit a forum from relitigating a person's sex once established by a sister state's equitable decree.
189. Id. at 226.
190. Id.
191. Id.
192. Id.
193. Id. at 240-41 (citing Thomas v. Wash. Gas Light Co., 448 U.S. 261, 282-83 (1980) ("Full faith and credit must be given to [a] determination that [a State's tribunal] had the authority to make; but by a parity of reasoning, full faith and credit need not be given to determinations that it had no power to make.")).
194. Id. at 239.
195. See id.
196. See id.
197. See Carroll v. Lanza, 349 U.S. 408, 411 (1955);
198. see also Laycock, supra note 65, at 290 ("It is clear that 'public Acts' means statutes. James Wilson and William Johnson said as much on the floor of the Convention, the First Congress so understood it, and the Supreme Court has so held.").
199. See Nevada v. Hall, 440 U.S. 410, 422 (1979);
200. Pac. Employers Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493, 504-05 (1939).
201. Under choice of law doctrine, states have interests in all kinds of things, and the definition and weight one gives to a particular interest or contact can ultimately determine the outcome of the analysis. In Gardiner, the Kansas court dealt with the effect of a Wisconsin document, issued by Wisconsin, amended in Wisconsin, pursuant to that state's laws, following a surgery which took place in Wisconsin which was performed at the behest of therapists, general practitioners, and surgeons professionally certified in and regulated by Wisconsin. It would therefore seem that, J'Noel's individual preference aside, Wisconsin ought to have some interest in seeing that its record, and the status change it authorized, is respected.
202. See Reynolds, The Iron Law, supra note 5, at 431-33 (explaining the prohibition on judgments which purport to transfer title to land located in another forum and hypothesizing that the rule is justified "because the situs jurisdiction has a strong interest in protecting the reliability of its land records [so] it must have the authority to ensure that those records are not confused by foreign decrees"). If the state's interest in protecting the reliability of land records is so strong for this reason, that interest must be similarly strong for some of its other executive records.
203. See also Laycock, supra note 65 at 34 (arguing in favor of focusing on locating relationships for purposes of establishing which jurisdiction's law should apply).
204. See Petition for Writ of Certiorari, Gardiner v. Gardiner, 537 U.S. 825 (2002) (No. 01-1853), at 20.
205. Baker v. Gen. Motors Co., 522 U.S. 222,233 (1998).
206. Laycock, supra note 65, at 332;
207. see also Allstate Ins. Co. v. Hague, 449 U.S. 302, 310-11(1981).
208. Laycock, supra note 65, at 332;
209. see also Phillips Petroleum Corp. v. Shutts, 472 U.S. 797, 823 (1985).
210. Phillips Petroleum Corp., 472 U.S. at 815.
211. Id. at 822.
212. Petition for Writ of Certiorari at 12-13, Gardiner v. Gardiner, 537 U.S. 825 (2002) (No. 01-1853);
213. see also Baker v. Gen. Motors Co., 522 U.S. 222, 232-33 (1998) (differentiating between credit-owed laws and credit-owed judgments).
214. See Part II, supra.
215. Petition for Writ of Certiorari at 16, Gardiner, 537 U.S. 825 (2002) (No. 01-1853). It should be acknowledged that a disparity exists between different judgments and acts. Some judgments, and some acts, are more deserving of faith and credit than others. We should expect this variation among executive records, too. I certainly advocate that birth certificates present a particularly strong case for ironclad, or at least for ironclad-like, protection. Professional licenses, on the other hand, seem more likely to implicate extraterritorial public policy concerns; a multitude of others can be affected by a professional's standing, while a person's sex seems to be no one's business but his or her own. Also, the structure of the sister state's government, and the mechanism through which the sister state's record was created, may require a higher or lower degree of deference. Greenberg and Herald concede this view may be correct, arguing that records amended pursuant to a court order might be entitled to judgment-like full faith and credit, while records amended through an administrative process alone might deserve only statute-like faith and credit. Greenberg & Herald, supra note 15, at 847.
216. See Texas State Historical Association, Handbook of Texas Online, http://www.tshaonline.org/handbook/online/articles/PP/npp1.html (last visited Sept. 14, 2009);
217. see also http://www.tshaonline.org/handbook/online/articles/GG/ mzgfq.html (last visited Sept. 14, 2009).
218. See Rogan Kersh et al., "More a Distinction of Words than Things": The Evolution of Separated Powers in American States, 4 ROGER WILLIAMS U. L. REV. 5, 14-15 (1998).
219. See id.
220. See id.
221. See id. at 33.
222. See id.
223. See Texas State Historical Association, Government, http://www.tshaonline.org/handbook/online/articles/GG/mzgfq.html (last visited Sept. 14, 2009). The association states: During the years of the Great Depression, the New Deal, war, postwar prosperity, and rising Texas urbanism, change in Texas government foreshadowed the contemporary state. A dominant characteristic of the period was the growth of state administration, including the implementation of new welfare and other social-service programs, which owed much to the influence of the federal government, the emerging dominant partner in the federal system.
224. Id.
225. Jim Rossi, Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards, 46 WM. & MARY L. REV. 1343, 1345 (2005).
226. Id.
227. Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U. FLA. J.L. & PUB. POL'Y 1, 2 (1993).
228. See Petition for Writ of Certiorari at 12, 17, Gardiner, 537 U.S. 825 (2002) (No. 01-1853).
229. Greenberg & Herald, supra note 15, at 845-46.
230. See id.
231. See Petition for Writ of Certiorari at 14, 23, Gardiner, 537 U.S. 825 (2002) (No. 01-1853).
232. See Human Rights Campaign, Marriage & Relationship Recognition, http://www.hrc.org/issues/marriage/marriage-laws.asp (last visited Sept. 13, 2009).
233. See Petition for Writ of Certiorari at 18, Gardiner, 537 U.S. 825 (2002) (No. 01-1853);
234. see also Kappler v. Shalala, 840 F. Supp. 582, 587 n.10 (N.D. Ill. 1994);
235. Bennett v. Schweiker, 532 F. Supp. 837, 839-40 (D.C.D.C. 1982);
236. Tindle v. Ceiebrezze, 210 F. Supp. 912, 914-15 (D.C. Cal. 1962);
237. Casares-Moreno v. United States, 226 F.2d 873 (9th Cir. 1955);
238. Northern v. State, 216 S.W.2d 192, 195 (Tex. Crim. App. 1949).
239. See Petition for Writ of Certiorari at 18, Gardiner, 537 U.S. 825 (2002) (No. 01-1853);
240. see also Young v. JCR Petroleum, Inc., 423 S.E.2d 889, 892 (W. Va. 1992) (corporate dissolution);
241. 500 Motors, Inc., v. Super. Ct., 122 Cal. App. 3d 827, 832 (Cal. Ct. App. 1981) (vehicle title);
242. People v. Terry, 390 P.2d 381, 388 (Cal. 1964) (executive pardon);
243. Colby v. Long, 289 F.2d 137, 141 (6th Cir. 1961) (vehicle title);
244. Wells v. Hiskett 288 S.W.2d 257, 263 (Tex. Civ. App. 1956) (corporate charter).
245. Williams v. North Carolina (Williams I), 317 U.S. 287 (1942).
246. Williams v. North Carolina (Williams II), 325 U.S. 226 (1945).
247. Williams I, 317 U.S. at 289.
248. Id. at 289-90.
249. Id. at 290.
250. Id.
251. Id. at 290-91.
252. Id. at 297-98, 304.
253. Id. at 298.
254. See id. at 298-99 ("Thus it is plain that each state by virtue of its command over its domiciliaries and its large interest in the institution of marriage can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.");
255. see also Petition for Writ of Certiorari at 21, Gardiner, 537 U.S. 825 (2002) (No. 01-1853), at 21 ("The notion that a birth certificate amendment cannot bind a third party because he was not a party to the Wisconsin proceeding is foreclosed by Williams").
256. Williams II, 325 U.S. 226, 232 (1945).
257. Greenberg & Herald, supra note 15, at 849 (quoting RESTATEMENT (FIRST) OF CONFLICT OF LAWS, § 199 cmt. C (1934)).
258. See Williams II, 325 U.S. at 232 (rejecting "in rem" label for divorce proceedings but conceding that these types of proceedings are similar in that a suit for divorce is "not an ordinary adversary proceeding," and yet other states must respect the outcome).
259. See Jackson, supra note 66, at 45 (stating that the Clause ensures that individuals "have some place in our federal system where they really belong for purposes of fixing their legal status and determining by whom they shall be governed").
260. Petition for Writ of Certiorari at 24, Gardiner, 537 U.S. 825 (2002) (No. 01-1853).
261. See also Habib A. Balian, 'Til Death Do Us Part: Granting Full Faith and Credit to Marital Status, 68 S. CALIF. L. REV. 397, 415-16 (1995) (extending the Williams I rationale for granting recognition of divorce decrees to marriage certificates, noting that, for full faith and credit purposes, there is no reason why the creation of the status of marriage should be treated differently than its dissolution).
262. These broad interests might include promoting worker safety and economically protecting injured persons, see Pac. Employers Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493, 503 (1939), vindicating the rights of a citizen's estate,
263. see Allstate Ins. Co. v. Hague, 449 U.S. 302, 315 (1981);
264. or providing remedies to those who might otherwise become public charges, see Alaska Packers Ass'n v. Indus. Accident Comm'n of Cal., 294 U.S. 532, 542 (1935).
265. Williams v. North Carolina (Williams I), 317 U.S. 287, 301 (1942);
266. see also Greenberg & Herald, supra note 15, at 850-51.
267. Greenberg and Herald state: The need to recognize a divorce, adoption, or paternity decree from a sister state is born of intensely practical considerations. If states fail to recognize a change in legal status made in another state, a tangled web of status issues could result, leaving the parties and those close to them in a legal and personal quagmire.
268. Id.
269. Williams I, 317 U.S. at 301.
270. Modem Woodmen of Am. v. Mixer, 267 U.S. 544, 551 (1925);
271. see also Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531, 546 (1915) (full faith and credit must be given to the organization's charter).
272. Modern Woodmen, 267 U.S. at 551.
273. Id.
274. See Converse v. Hamilton, 224 U.S. 243, 252-53 (1912);
275. see also Carroll v. Lanza, 349 U.S. 408, 415-17 (1955) (Frankfurter, J., dissenting) (characterizing the stockholder relationship as creating a "transitory cause of action").
276. See CAL. FAM. CODE §§ 500-511 (2004).
277. Kramer, supra note 106, at 1966.
278. Id. at 1969.
279. See Cox, Adoptions, supra note 14, at 758 (discussing the concept of a "marriage visa").
280. Kramer, supra note 106, at 1966.
281. Loucks v. Standard Oil Co., 120 N.E. 198, 202 (N.Y. 1918).
282. It is debatable whether, under DOMA, this standard also includes same-sex marriages performed in a sister state. There is ample literature arguing that DOMA is unconstitutional. But because the constitutionality of DOMA is outside the scope of this Comment, I do not delve into the issue here, except to say that because the rule I am advocating is a matter of constitutional law, it arguably could only be revised by constitutional amendment, not by statute. Further, the consequences of my interpretation do not necessarily conflict with DOMA, even if it is constitutional. The court's reasoning in Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), is persuasive on this point. In Finstuen, the Tenth Circuit, on full faith and credit grounds, struck down an Oklahoma statute barring recognition of adoptions by same-sex couples performed in sister states.
283. Id. at 1156. The court reasoned that it was unconstitutional for a state to legislate "categorical non-recognition of a class of adoption decrees from other states."
284. Id. Therefore, regardless of state, or even federal, policy on same-sex marriage, the standing of personal status records relating to one's sex should remain protected under the Constitution.
285. Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923));
286. see also Loving v. Virginia, 388 U.S. 1, 12 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.").
287. Zablocki, 434 U.S. at 384 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
288. Id. at 397.
289. Id. at 386-87.
290. Kramer, supra note 106, at 1971.
291. Id.
292. Cox, Adoptions, supra note 14, at 757 (quoting Barbara J. Cox, Same-Sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home?, 1994 WIS. L. REV. 1033, 1064 (1994) [hereinafter Cox, If We Marry]).
293. Kramer, supra note 106, at 1971.
294. See Cox, Adoptions, supra note 14 at 757. Cox states: Virtually all states have upheld the validity of a marriage by their own domiciliaries (or others) if that marriage was valid under the law of the state where it was celebrated. States recognize these out-of-state marriages ⋯ even when they violate the internal law of the forum state, because of the strong public policy reasons behind such recognition.
295. Id. Cox further notes that these policies include "confirm[ing] the parties' expectations, provid[ing] stability in an area where stability (because of children and property) is very important, and ⋯ avoid[ing] the potentially hideous problems that would arise if the legality of a marriage varies from state to state."
296. Id. (quoting Cox, If We Marry, supra note 204, at 1065).
297. Laycock, supra note 65, at 313.
298. Kramer, supra note 106, at 1986.
299. Jackson, supra note 66, at 27;
300. see also Carroll v. Lanza, 349 U.S. 408, 415 (1955) (characterizing part of past opinion indicating that a forum may refuse to enforce a law it finds antagonistic to its public policy as "dicta") (Frankfurter, J., dissenting).
301. Loucks v. Standard Oil Co., 120 N.E. 198, 202 (N.Y. 1918).
302. Baker v. Gen. Motors Corp., 522 U.S. 222, 234 (1998) (quoting Monrad G. Paulsen & Michael I. Sovern, Public Policy in the Conflict of Laws, 56 COLUM. L. REV. 969, 980-81 (1956)).
303. Id. at 233 n.6.
304. Id.
305. Kramer, supra note 106, at 1987.
306. See Alaska Packers Ass'n v. Indus. Accident Comm'n, 294 U.S. 532 (1935).
307. Greenberg & Herald, supra note 15, at 854.
308. Id. at 853.
309. Cox, Adoptions, supra note 14, at 777 (quoting Riley v. N.Y. Trust Co., 315 U.S. 343, 348-49 (1942)).
310. Story, supra note 64, § 1309.
311. Id.
312. Haring v. Prosise, 462 U.S. 306, 313 (1983) (quoting Allen v. McCurry, 449 U.S. 90, 96 n.6 (1980)).
313. See Reynolds, The Iron Law, supra note 5, at 444-45 (discussing Thomas).
314. See id. (discussing Thomas)
315. See Thomas v. Wash. Gas Light, 448 U.S. 261, 282 (1980).
316. Baker v. Gen. Motors Corp., 522 U.S. 222, 246 (1998).
317. In re Estate of Gardiner, 22 P.3d 1086, 1107-08 (Kan. Ct. App. 2001).
318. See Human Rights Campaign, Transgender, http://www.hrc.org/issues/ transgender/transgender-laws.asp (last visited Sept. 14, 2009) (indicating nearly all states allow amendment of sex status, though the grounds for allowing amendment vary).