The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In my last post, I covered some potential federalism issues raised by the Respect for Marriage Act, which seems to protect same-sex marriage in the event the Supreme Court overrules Obergefell v. Hodges. Among other things, I cited the work of Prof. Steve Sanders of Indiana University, a leading academic expert on same-sex marriage and the Full Faith and Credit Clause.
After reading my post, Steve indicated he largely agreed with my analysis, and sent me the following comment, which he has authorized me to reprint here. I have reprinted Steve's comment unaltered, except for a couple clarifications I have put in brackets. Steve's piece is in the blockquote. Everything else in the post is my own writing. Here is Steve's comment:
The conventional scholarly wisdom is that the Article IV Full Faith and Credit Clause doesn't, on its own, compel interstate recognition of marriages, because at the end of the day, a state's definition of marriage is just an expression of statutory policy, and the Supreme Court has long said that FF&C does not mean states are obligated to defer to the policy ideas of other states. I have pushed back on that conventional wisdom, as you noted [in my original post]. But what's key is that the FF&CC also contains a grant of power to Congress to prescribe by statute the "effect" of one state's "acts" in other states.
Is there some cost to federalism in the Respect for Marriage Act? Sure. But the FF&CC was intended as a unifying device, not a states-rights provision. And as a policy matter, the cost is far outweighed by the chaos and injustice that would be caused by allowing one state to nullify another state's existing legal marriage. Aside from the appalling human costs, there are federalism implications to that as well. The Respect for Marriage Act basically says, "You are required to give effect to a legal relationship validly created under another state's law. This is one country, one where people move around all the time. You can't treat their marriage license like a worthless piece of foreign currency."
In his famous article on the Full Faith and Credit Clause, Justice [Robert] Jackson argued that "[w]here there is a choice," the Clause should be used to "meet the needs of an expanding national society for a modern system of administering, inexpensively and expeditiously, a more certain justice." Doing so was important to "certainty and order."
In another related area of family law, child custody, federal law passed pursuant to the FF&CC already imposes certain requirements and restrictions on states to prevent "parental kidnapping" and relitigation of custody in another state.
It's often forgotten that the federal DOMA [the 1996 Defense of Marriage Act], in addition to forbidding federal recognition of same-sex marriages, also included the following section: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
That was basically the mirror image of the new provision in the Respect for Marriage Act. DOMA purported to allow states to deny recognition; the new law requires them to give recognition. I don't think anyone seriously questioned Congress's power in DOMA to prescribe the "effect" of full faith and credit in this way, but it never became an issue because it was basically superfluous. It was generally accepted that states already had the inherent power to deny recognition to marriages of which they disapproved.
One thing that's a little unclear is whether this language is intended to protect parent-child relationships that arise through SSM. If two women are married, one gives birth and the other is the second legal parent, is the non-biological mother's parental status protected by this law? Arguably it's a "right or claim arising from" the marriage, so I hope that's the understanding courts would give it, but the new law could be more clear.
I think Steve's points above are well-taken. While states may not be required to recognize out of state marriages by virtue of the FFC Clause taken alone, there is a much stronger case that Congress can use its powers under the Clause to require them to do so. If it cannot, that would - as Steve notes - also call into doubt existing federal statutes requiring states to defer to other states' child custody laws, lest they open the door to "kidnapping" and repeated relitigation of custody issues.
I think Steve is also right that Section 3 of the Respect for Marriage Act is less clear on the issue of whether states are required to recognize the parental rights of same-sex couples married out of state. Probably the best interpretation of the Act is that they are (also for the reason Steve says). But it's an issue that might end up getting litigated if the Act gets enacted in its current form.