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