Full faith and credit and same sex marriage
Douglas Laycock
DLaycock at mail.law.utexas.edu
Tue Feb 24 09:45:18 PST 2004
"public Acts" might mean any action performed by government, in
which case "records and judicial proceedings" would be surplusage or
possibly ejusdem generis elaboration. I don't know if there are any cases
considering that possibility.
The more conventional reading is that "public Acts" means acts of
the legislature -- statutes. I assume -- again I know no case law on this
-- that "public Acts" excludes private bills.
At 09:42 PM 2/23/2004 -0500, guayiya wrote:
>Can someone explain what "public acts" are, and why performing and
>recording a civil marriage is not one?
>Daniel Hoffman
>
>Douglas Laycock wrote:
>>
>>The FF&C Clause requires FFC to "public Acts, records, and judicial
>>proceedings." As Earl says, there is absolutely no case law support for
>>the view that there is any problem with a public policy refusal to
>>recognize sister state "Laws." There are repeated holdings that there
>>can be no public policy refusal to recognize sister state
>>judgments. There is little or no law on on "records," or on "judicial
>>proceedings" less than a judgment.
>>
>>The argument for mandatory recognition of marriages would have to be that
>>because they represent the sister state's decision as applied to specific
>>parties in a specific fact situation, they are more like a judgment than
>>they are like a general rule of law. Stretching further, the couple
>>might argue that their marriage is reflected in a "record," or if they
>>got married by a judge, that their marriage is reflected in a "judicial
>>proceeding." I would not take any of those claims on a contingent fee,
>>and certainly not the last two. But the distinction between laws and
>>judgments, which has no basis in constituitional text, seems wholly
>>arbitrary unless it is a distinction between general rules and specific
>>cases. So the argument for FF&C to specific cases is not bad. But the
>>rule as to marriages (all or nearly all in the lower courts) has been
>>otherwise.
>>
>>Shameless plug: I develop the textual, structural, and originalist
>>argument against the public policy exception in Equal Citizens of Equal
>>and Territorial States: The Constitutional Foundations of Choice of Law,
>>in 92 Columbia. I do not claim case-law support. In general,
>>constitutional lawyers who have looked at choice of law have been much
>>more inclined to find rules and constitutional limits; conflicts lawyers
>>have been deeply resistant to either.
>>
>>-----Original Message-----
>>From: Earl Maltz <mailto:emaltz at crab.rutgers.edu><emaltz at crab.rutgers.edu>
>>To: Mark Tushnet
>><mailto:tushnet at law.georgetown.edu><tushnet at law.georgetown.edu>
>>Date: Sun, 22 Feb 2004 15:30:22 -0500
>>Subject: Re: Full faith and credit and same sex marriage
>>
>>That certainly is the standard citation. However, when I read the piece
>>several years ago, I found it completely unpersuasive. My recollection
>>(subject to being corrected by Larry, of course) is that the article did
>>not discuss Hague; instead, it relied heavily on Hughes v. Fetter,
>>which was by its terms was concerned only with the obligation to provide a
>>forum in a case where the substantive law of the two states was the
>>same. Moreover, Justice Black EXPLICITLY stated that the case had no
>>application to a situation where the two states had different
>>policies. Finally, the decision predated Hague by 30 years, and thus, to
>>the extent that it is inconsistent with Hague and its progeny, has been
>>modified or overruled sub silentio.
>>
>>So the question recurs: what case authority does an expert have for
>>stating without qualification that the unadorned Full Faith and Credit
>>Credit Clause requires recognition of same sex marriage if the marriage is
>>valid where celebration.
>>
>>At 02:04 PM 2/22/2004 -0500, you wrote:
>>
>>>
>>>I think the standard citation would be Larry Kramer, Same-Sex Marriage,
>>>Conflict of Laws, and the Unconstitutional Public Policy Exception, 106
>>>Yale L.J. 1965 (1997).
>>>
>>>Conkle, Daniel O. wrote:
>>>
>>>>
>>>>I, too, would welcome a response to Earl's question. In preparation for
>>>>an informal talk to a local service club last week, I did a bit of
>>>>research, which seemed to confirm Earl's view. My research further
>>>>suggested that states, as a matter of conflict of laws, in fact
>>>>generally recognize a marriage from another state if the marriage was
>>>>valid under the law of that state, but they have refused to honor the
>>>>marriage if it is against the "strong public policy" of the forum state.
>>>>Anyway, my tentative conclusion was that from a legal point of view, the
>>>>federal DOMA provision addressing full faith and credit was an
>>>>"abundance of caution" statute for those who oppose the "portability" of
>>>>same-sex marriage. (Conversely, the various state-law DOMAs might have
>>>>more significance in defeating portability by confirming or indicating
>>>>the state's "strong public policy" against same-sex marriage.) But I
>>>>can't claim any particular expertise on these issues, and I did not
>>>>conduct anything like exhaustive research. So, I'll simply second
>>>>Earl's question.
>>>>
>>>>Dan Conkle
>>>>
>>>>-----Original Message-----
>>>>From:
>>>><mailto:conlawprof-bounces at lists.ucla.edu>conlawprof-bounces at lists.ucla.edu
>>>>[<mailto:conlawprof-bounces at lists.ucla.edu>mailto:conlawprof-bounces at lists.ucla.edu]
>>>>On Behalf Of Earl Maltz
>>>>Sent: Sunday, February 22, 2004 12:50 PM
>>>>To: <mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu
>>>>Subject: Full faith and credit and same sex marriage
>>>>
>>>>In today's Philadelphia Inquirer, Kermit Roosevelt asserts categorically
>>>>
>>>>that, in the absence of Doma, states would be constitutionally required
>>>>to
>>>>recognize same sex marriages solemnized in states in which they were
>>>>legal. I've seen this argument in law review articles as well, and I
>>>>always have the same question: Since marriage is a contract and not a
>>>>judgment, why aren't states generally free not to recognize such unions
>>>>;under the rule of Allstate v. Hague? Can anyone cite me to an S. Ct.
>>>>case
>>>>to the contrary?
>>>>
>>>>
>>>>_______________________________________________
>>>>To post, send message to
>>>><mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
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>>>>
>>>>_______________________________________________
>>>>To post, send message to
>>>><mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
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>>>><http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>>
>>>>
>>
>>
>>
>>_______________________________________________
>>To post, send message to
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>>
>>
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>>
>>
>
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX 78705
> 512-232-1341 (voice)
> 512-471-6988 (fax)
> dlaycock at mail.law.utexas.edu
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