Full faith and credit and same sex marriage
Larry Tribe
larry at tribelaw.com
Tue Feb 24 11:15:42 PST 2004
Interesting. Given the widespread albeit not universal support for the view
that marriages are not entitled to full faith and credit even without DOMA,
I would have thought that a much stronger rationale, consistent with GWB's
theme that we are at peril from the excesses of activist judges and
reflecting GWB's loudly voiced dismay at Lawrence v. Texas, would have been
that only an amendment to the U.S. Constitution can protect both the states
and the federal government from the force of a future Supreme Court ruling,
based on the Equal Protection Clause in the former case and the Due Process
Clause in the latter, that denying otherwise qualified same-sex couples all
the legal incidents of marriage -- and, should the Supremes follow the
approach of the SJC's advisory opinion in the wake of Goodridge, even
granting all those incidents but simply withholding the "M" word -- either
constitutes forbidden sex discrimination or deprives same-sex couples of
equality in the eyes of the law with opposite-sex couples. -- Larry Tribe
_____
From: Dellinger, Walter [mailto:WDellinger at omm.com]
Sent: Tuesday, February 24, 2004 10:53 AM
To: 'Douglas Laycock'; guayiya
Cc: conlawprof at lists.ucla.edu
Subject: RE: Full faith and credit and same sex marriage
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] 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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