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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