Will California Gay Marriages be Legal in Other States?


A straight-forward reading of Article IV, Section 1, of the U.S. Constitution, would seem to indicate that the anwer to this question is an unequivocal yes.

It isn’t.

The first sentence of Article IV, Section 1, says:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Application of this provision to California gay marriages, based on that straight-forward reading mentioned above, seems simple enough. If a gay couple marries in California, a “public record” (the recorded marriage) is created. That “public record” is created pursuant to “public acts” (the California marriage laws). Those “public acts” have now been deemed constitutional under California law by “judicial proceedings” all the way up to and including the California Supreme Court.

Ergo, “full faith and credit” shall be given to those marriages “in each state”.

Not so fast, bucko. “Straight forward” reading (also known as “strict construction”) of the constitution is a long-lost art. With respect to the full faith and credit clause, the U.S. Supreme Court gradually developed a principle referred to as the “public policy” exception to the constitutional provision. Which is another way of saying, “we don’t like the result of following the constitution, so we’re not going to”.

In 1939, the Supremes essentially allowed the “public policy” exception to swallow the clause to which it was supposed to be an exception. In the case of Pacific Employers Ins. Co. v. Industrial Accident Comm’n, the court said:

“… the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.”

If that decision is read to mean that states do not even have to recognize the status of people previously established by the laws of another state (such as the status of being married), which status requires neither action nor ratification by the recognizing state, then the “full faith and credit” clause might as well read:

“Full Faith and Credit need be given in each State to the public Acts, Records, and judicial Proceedings of every other State only if those public Acts, Records, and judicial Proceedings happen to comport with the laws of the other State.”

It would make sense (constitutional sense, that is) to say that other states are not required to follow California’s lead in permitting gay marriage. Thus, a California gay couple ought not to expect to be able to obtain a quicky Las Vegas marriage so long as the laws of Nevada do not permit same-sex marriage. On the other hand, it makes neither constitutional nor practical sense to say that a couple legally married in California is not married while they are travelling through, or if they move to, another state which does not permit gay marriage. Talk about public policy designed to create social chaos!

The issue is somewhat complicated by the federal statute called the Defense of Marriage Act or DOMA. DOMA purports to overrule the “full faith and credit” clause with respect to same-sex marriages. It says:

“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.”

Notice the specific attempt, by statutory language, to override the U.S. Constitution (“any public act, record or judicial proceeding”). Of course, the Constitution cannot be amended by statute and there are serious doubts about the constitutionality of DOMA.

Nevertheless, it appears to be the current state of constitutional scholarship (derisive laughter in the background) that “full faith and credit” need not be given by other states to California same sex marriages.

At least, that is, unless and until the U.S. Supreme Court steps in and recognizes that same-sex marriage is protected by the federal constitution. That court has already held in Lawrence v. Texas that homosexual sex is constitutionally protected, in the process invalidating a Texas law criminalizing sodomy. So it is, perhaps, not that big a step to full-fledged constitutional protection of gay rights and same-sex marriage.

As an interesting (at least to me) aside, Justice Antonin Scalia, the self-styled “originalist” (his way of saying he’s a “strict constructionist” based on the “original” language of the constitution), dissented in Lawrence. Among other things, he complained that, by its majority opinion in that case, the court had:

“… largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

He also worried that the decision would undermine other state laws relating to sexual activities, including those prohibiting same-sex marriage. So much for “originalist” interpretation of “equal protection” and “due process”, never mind what little is left of “full faith and credit”.

———————————————

If you want to learn more about constitutional provisions and laws which apply to this issue, Wikipedia has an extensive article on the history and effect of the “full faith and credit” clause at:

http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause

The text of the case Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939) is on FindLaw at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=306&invol=493

The quotation cited in the post above is at page 306 U.S. 502.

The Defense of Marriage Act is Public Law 104-190 and is in the U.S. Statutes at Large at 110 Stat. 2419 (1996). The full text of the act can be read at:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_laws&docid=f:publ199.104

Wikipedia also has article on DOMA at: http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

The text of the case Lawrence v. Texas, 539 U.S. 558 (2003) is on FindLaw at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=539&page=558

4 thoughts on “Will California Gay Marriages be Legal in Other States?

  1. Just what exacly and precisely word for word is this so called right, that supersedes the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, that it is incumbent upon the State to legally sanction intimate adult relations? Let’s pass legislation (i.e., Constitutional Amendment) legally predicating the perpetuation of the human species on mating, heterosexual human relations. So, am I to conclude equality like beauty is in the eye of the beholder?

  2. Like Randy DeSoto, you have constitutional interpretation backwards, Vlad. See my discussion with him in my most recent post at:

    http://freelegaladvice.wordpress.com/2008/06/24/point-counterpoint-with-randy-desoto/

    It is not necessary for a right to be spelled out “word for word” in order for it to be constitutionally protected. On the contrary, the government can deny our rights only if the constitution specifically grants to it the power to do so.

    It is also not clear what you mean by this right “superceding” the Equal Protection Clause. The latter protects our rights, it is not “superceded” by them. And it protects the rights of everyone, not just heterosexuals.

    Nor is it incumbent upon the “State” to “legally sanction intimate adult relations”. The point is that it is no proper concern of the state what consenting adults do in their intimate relations and that we don’t need the government’s “sanction” to engage in them.

    We need neither “legislation” nor a constitutional amendment (two very different things) “legally predicating the perpetuation of the human species on mating, heterosexual human relations”. Nature has already done that and needs no help from us.

    Check out world population statistics — perpetuation of the species is hardly in need of protection, legal or otherwise. Besides, it seems unlikely that denying gays the right to marry will suddenly result in them becoming heterosexual and adding to the population boom.

    You should conclude that equality is in the language of the constitution and that it applies to every person regardless of where he or she beholds beauty.

  3. My partner and I were married legally in Toronto Canada in 2005. I understand that now our marriage is legal in California and that we do not have to marry again. If the amendment is passed will our marriage then not be recognized? Would you recommend that we have a CA marriage to safeguard against that? Help please…thanks, Mark

  4. Hi Mark and thanks for raising an interesting question. As you undoubtedly know, Canada is one of several countries which have now extended nationwide recognition to same sex marriages.

    The proximity of the U.S. and Canada, as well as their history of shared cultural, social and economic interests has made the two countries strong allies. Traditionally, each has recognized marriages valid in the other.

    Presently, three states in the U.S. have specifically extended legal recognition to Canadian gay marriages — New York, Rhode Island and New Mexico. Whether California will join that list is not yet entirely clear, though such recognition would seem to be a logical extension of the “In re Marriage Cases” decision.

    If the proposed constitutional amendment is approved in November, a number of significant legal questions will be raised. Among them will be whether gay marriages performed before the initiative passes remain valid. Inasmuch as they were legal when performed, a good argument can be made that they will remain valid, even though no new gay marriages could then be performed.

    On the other hand, if the initiative passes, it seems inescapable that California would no longer recognize as valid gay marriages performed in Canada.

    Therefore, if you and your partner are and expect to remain California residents, it seems to me that getting married again in California might provide some measure of protection of your marital status if the proposed constitutional amendment is adopted.

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