Full faith and credit and same sex marriage

Kermit Roosevelt krooseve at law.upenn.edu
Tue Feb 24 13:54:59 PST 2004


I understand this point from a practical perspective.  But in more 
abstract terms, the Constitution is the supreme law of the land.  If the 
Constitution forbids a particular policy choice, then the states can't 
make it.  That's just the way things are.  You can certainly argue that 
Lawrence is wrong, but that's more about constitutional interpretation 
than federalism.  Or you can argue that it's unfortunate that the 14th 
Amendment protects same-sex sexual intimacy, because that's an issue 
that should have been left up to the states, which is the federalist 
point.  I don't think there are many people who believe Lawrence was 
rightly decided who would make that argument, though.

Focusing just on the federalism point,  the question is which issues are 
appropriately left to the states and which aren't.  I think it makes a 
good deal of sense to say that the national polity will intervene to 
prevent states from oppressing particular groups.  Discrimination is not 
an area in which I think states should be free to go their own way.  For 
the national polity to intervene and say that states cannot refrain from 
discrimination, in the absence of plausible interstate externalities, 
strikes me as bizarre.

earl maltz wrote:


>>I oppose the FMA.  But, funny, I don't remember anyone howling about
> 
> federalism in their discussuions of Lawrence v. Texas.
> 
>>At 11:32 AM 2/24/2004 -0500, you wrote:
>>
>>>As I understand it, Bush's rationale is actually related neither to DOMA 
>>>nor to the possibility of a federal Supreme Court decision.  It's that a 
>>>federal constitutional amendment is necessary to protect the people of 
>>>states such as Massachusetts from their "activist judges."  Not 
>>>federalism's finest hour.
>>>
>>>Larry Tribe wrote:
>>>
>>>
>>>>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 t
> 
>>>he 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
> <emaltz at crab.rutgers.edu> <mailto:emaltz at crab.rutgers.edu> To: Mark Tushnet
> <tushnet at law.georgetown.edu> <mailto:tushnet at law.georgetown.edu> Date: Sun,
> 22 Feb 200
> 
>>>4 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 require
> 
>>>s 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%3Econlawprof-bounces at lists.ucla.ed
> u> [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
> <mailto:conlawprof at lists.ucla.edu%3Econlawprof 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 un
> 
>>>ions ;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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>>>-- 
>>>Kermit Roosevelt
>>>Assistant Professor
>>>University of Pennsylvania Law School
>>>3400 Chestnut Street
>>>Philadelphia PA 19104
>>>215.746.8775
>>>
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-- 
Kermit Roosevelt
Assistant Professor
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia PA 19104
215.746.8775



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