[Breaker: Will the full faith and credit clause be the latest weapon
in the war against marriage?]
When the California Supreme Court instituted same-sex “marriage,” the
mayor of San Francisco said, “As California goes, so goes the
nation.” There is a real danger that this may turn out to be
the case. The governor of New York has instructed all agencies of the
state government to recognize California and Massachusetts same-sex
marriages. This order is being challenged in the courts. The governor
claims that he is not making new law but simply executing the law as
it already exists.
Those who want to use the California case to impose same-sex marriage
on the entire country claim to rely on Article IV, Section 1, of the
United States Constitution, which says, “Full Faith and Credit
shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall
be proved, and the Effect thereof.”
By 1940, Nevada had become a divorce mill to which people from all
over the United States came to get easy divorces. Most states at the
time granted divorces for very few causes, such as adultery or a sentence
of life imprisonment without parole. Nevada allowed divorce for “extreme
cruelty” and interpreted the term broadly. In two cases involving
the same parties, the United States Supreme Court decided in 1942
and 1945 that (except when the states could show fraud beyond
a reasonable doubt) all states had to give effect to Nevada divorces
because of the full faith and credit clause.
The argument will now be made that the same rules apply in same-sex
marriage cases. The question of whether a marriage is a “public
act or record” has never been resolved, although state governments
do give effect to non-ceremonial common-law marriages valid in the
place entered into but not in the state where the spouses live. The
cases involving Nevada divorces are based on the idea that at least
one spouse actually did live in Nevada for several weeks. A good argument
certainly can be made that, since California (unlike Massachusetts)
has no residence requirement to marry there, the Nevada divorce cases
are simply different and not a precedent for a ruling on a potential
same-sex marriage case.
The law on the question of whether a same-sex marriage is entitled
to full faith and credit involves such lack of precedent that no prediction
on how the courts will resolve it is possible. From a public policy
point of view, however, the idea that one state can impose its will
on this issue on the entire nation is outrageous.
The second part of Article IV, Section 1, allows Congress to prescribe
the effect of the public acts and records. Almost all legislation under
this provision, and litigation concerning it, pre-dates the War Between
the States. The old cases seem to construe the power of Congress under
it quite broadly. In 1996 the Defense of Marriage Act was passed under
the authority of this provision. It denies full faith and credit to
any marriage other than one between a man and a woman. If the Defense
of Marriage Act is not repealed by a new Congress and is not overturned
by rogue courts, it will provide protection against the kind of thing
the governor of New York is attempting.
There are two major dangers. The first is that courts will begin
holding, as a matter of federal Constitutional law, that California
same-sex marriages must be respected throughout the country. The second
is that state courts will begin to find, as a matter of state constitutional
law, that California and Massachusetts same-sex marriages are valid
between residents of their states.
Inaction leaves us particularly vulnerable to both dangers. While
success is not assured, a strong defense of the constitutionality of
the Defense of Marriage Act and vigilance to prevent its repeal are
the most likely ways to protect the rest of the country from Californian
same-sex marriages. Another action might be state legislation refusing
to recognize same-sex marriages. In the Nevada divorce cases, the United
States Supreme Court has recognized a state interest in preventing
polygamy. There is no reason that such a state interest should not
be similarly recognized in same-sex marriage cases. Finally, of course,
it is important to support the people of California in their effort
to amend the California Constitution to prohibit same-sex marriages.
Back to The Confederate
The Confederate Lawyer is copyright © 2008
by the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
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