Faith And Credit Clause: Gay Marriage's Legal Ally?

The Full Faith and Credit Clause, outlined in Article IV, Section 1 of the U.S. Constitution, mandates that each state must recognise the public acts, records, and judicial proceedings of every other state. This clause has been central to debates about same-sex marriage, with some arguing that it requires states to recognise same-sex marriages performed in other states. However, until the Supreme Court's 2015 ruling in Obergefell v. Hodges, many states refused to recognise these marriages, and Congress passed the Defense of Marriage Act (DOMA) in 1996, allowing states to refuse recognition. The clause's application to same-sex marriage remains a contentious issue, with legal scholars debating its interpretation and impact on marriage equality.

The Full Faith and Credit Clause and the Defense of Marriage Act

The Full Faith and Credit Clause, outlined in Article IV, Section 1 of the United States Constitution, addresses the duty of individual states to respect the laws, records, and judicial proceedings of every other state. The clause requires each state to give a certain measure of respect to the laws and institutions of other states.

The Defense of Marriage Act (DOMA), enacted by Congress in 1996, defined marriage as a union between one man and one woman for federal purposes. The act also allowed states to refuse to recognize same-sex marriages performed in other states. The constitutionality of DOMA was questioned, with some scholars arguing that it violated the Full Faith and Credit Clause.

The Supreme Court, in United States v. Windsor, struck down DOMA as a violation of the Constitution's Equal Protection Clause. The Court did not address the Full Faith and Credit Clause in its decision. However, in Obergefell v. Hodges (2015), the Supreme Court held that the Due Process and Equal Protection provisions of the Fourteenth Amendment required the legalization of same-sex marriage nationwide. As a result, the Defense of Marriage Act was rendered obsolete.

The Clause's application to same-sex marriage

The Full Faith and Credit Clause has been applied to same-sex marriages, civil unions, and domestic partnerships, but its application to these areas is unresolved. The clause states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State".

In 1996, the Defense of Marriage Act (DOMA) was passed, which expressly recognised the right of each state to refuse to give full faith and credit to any orders arising out of same-sex relationships treated as marriage. This meant that states could refuse to recognise same-sex marriages performed in other states. However, in 2015, the Supreme Court's decision in Obergefell v. Hodges rendered DOMA obsolete and legalised same-sex marriage nationwide.

Despite this, the Full Faith and Credit Clause has still been invoked in same-sex marriage cases. In V.L. v. E.L., the Supreme Court ruled that under the clause, the State of Alabama must recognise the adoption decree granted to a same-sex couple by a Georgia state court in 2007. Additionally, the Respect for Marriage Act, passed by Congress, repealed DOMA and affirmed that public acts, records, and proceedings should be recognised by all states, providing additional protection for married couples and families.

The application of the Full Faith and Credit Clause to same-sex marriage continues to be a complex and evolving area of law, with legal scholars debating its interpretation and impact.

The Clause's impact on child custody orders

The Full Faith and Credit Clause, outlined in Article IV, Section 1 of the US Constitution, dictates that each state must recognise and enforce the "public acts, records, and judicial proceedings" of every other state. This includes child custody orders, which are nearly universal across states.

Congress passed the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to create consistency in state custody laws. This federal law requires every state to enforce any custody or visitation determination made by a court of another state. The UCCJEA is based on the Constitution's Full Faith and Credit Clause.

The Full Faith and Credit Clause also applies to child support orders. The Federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B) outlines the enforcement of the clause in this context.

In the case of a parent moving to a different state, the custody order will usually remain the same. However, if the non-custodial parent's visitation rights are affected, a motion must be filed in the state that issued the order before the move. In cases where a parent with joint physical custody wishes to move, the court will focus on comparing the child's life if the move is permitted versus not allowed, which may result in a change of custody.

The Full Faith and Credit Clause has been a topic of debate in same-sex custody cases. The Defense of Marriage Act (DOMA), passed in 1996, allowed states to refuse to recognise same-sex marriages performed in other states. However, the Supreme Court's decision in Obergefell v. Hodges in 2015 rendered this provision of DOMA obsolete. Despite this, the application of the Full Faith and Credit Clause to state-sanctioned same-sex marriages remains unresolved.

The Clause's role in state sovereignty

Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty of individual states to respect the laws, records, and judicial proceedings of other states. This clause upholds state sovereignty by allowing states to retain their own rules and regulations, while also requiring them to give recognition to the laws and decisions made by other states.

The Full Faith and Credit Clause plays a crucial role in maintaining a balance between state sovereignty and national unity. While it requires states to respect the decisions and laws of their counterparts, it does not force them to adopt or enforce these laws within their own borders. For example, a fishing license from one state does not give you the right to fish in another state, and states can have conflicting rules about marriage. This clause ensures that each state's sovereignty is respected while also fostering cooperation and recognition among states.

The clause also grants Congress the power to determine how these out-of-state laws, records, and proceedings can be proven in court and the effect they will have. This power allows Congress to set uniform standards and ensure that states' documents are adequately recognised across the nation.

The Full Faith and Credit Clause has been the subject of controversy and interpretation over the years. In the early days of the US, when transportation and communication were slower, ensuring the authenticity of documents from another state was a challenge. The clause helped establish a system where states were obliged to treat other states' documents as genuine once they were adequately proven, preventing potential conflicts.

However, the interpretation and application of the clause have evolved over time. The Supreme Court has, on occasion, interpreted the clause as a source of national unity and a way to resolve conflicting public policies between states. In other cases, the Court has allowed states to favour their own laws, emphasising state sovereignty.

In recent years, the clause has been invoked in the context of family law, including same-sex marriage and adoption. While the clause has been used to support the recognition of same-sex marriages performed in other states, it has also been used to attempt to deny such recognition. The Defense of Marriage Act (DOMA), passed by Congress in 1996, allowed states to refuse to recognise same-sex marriages performed in other states. However, this act was deemed unconstitutional by the Supreme Court in 2015, and the clause's role in state sovereignty regarding same-sex marriage remains a subject of debate.

The Clause and the Respect for Marriage Act

The Respect for Marriage Act (RFMA) is a landmark federal law in the United States, passed by the 117th US Congress in 2022 and signed into law by President Joe Biden. The Act repeals the Defense of Marriage Act (DOMA) and requires the federal government and all US states and territories to recognise the validity of same-sex and interracial civil marriages.

The RFMA was introduced in response to Justice Clarence Thomas' concurring opinion in Dobbs v. Jackson Women's Health Organization, in which he urged the Supreme Court to overturn its rulings on the fundamental constitutional right to same-sex marriage. The Act garnered the most support ever for a pro-LGBTQ bill in Congress, with 47 House Republicans voting in favour.

The RFMA fully repeals the federal respect portion of DOMA, which barred the federal government from recognising the marriages of same-sex couples who were married under state law. It replaces this with a requirement for federal recognition. The Act also repeals the Full Faith and Credit portion of DOMA, which stated that the Full Faith and Credit Clause of the Constitution did not require states to respect the marriages of same-sex couples performed by other states. The RFMA replaces this with a statement that Full Faith and Credit does indeed require interstate recognition of these marriages.

The Full Faith and Credit Clause, found in Article IV, Section 1 of the US Constitution, addresses the duty that states have to respect the "public acts, records, and judicial proceedings of every other state". The Clause has been applied to orders of protection and child support, and was invoked by the Violence Against Women Act. While the Clause has never been used to force a state to recognise a marriage it did not wish to, it has been applied to common-law marriages in sister states.

Frequently asked questions