Full faith and credit and same sex marriage
Dellinger, Walter
WDellinger at OMM.com
Tue Feb 24 07:53:24 PST 2004
This just in: This string has taken on a new import. President Bush
announced shortly after 10 am his support for an amendment to the
Constitution. In his view, DOMA would not constitutionally protect states
from the force of the Full Faith and Credit Clause.
-----Original Message-----
From: Douglas Laycock [mailto:DLaycock at mail.law.utexas.edu]
Sent: Tuesday, February 24, 2004 10:45 AM
To: guayiya
Cc: conlawprof at lists.ucla.edu
Subject: Re: Full faith and credit and same sex marriage
"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%3Econlawprof-bounces at lists.ucla.ed
u>
<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%3Econlawprof at lists.ucla.edu>
<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?
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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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