Full Faith and Credit

Why don’t we already have gay marriage in all of America?

I mean this as a simple question of law, not a matter of fundamental rights or justice. The reason I ask is because we already have legally recognized gay marriage in Massachusetts and Connecticut, and because Article IV of the U.S. Constitution contains the following clause, commonly known as the Full Faith and Credit Clause:

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.

The language of the clause is clear and unmistakable: any act or judicial proceeding that’s valid in one state must be legally recognized by the other states. Marriage is a government act and comes under this definition, so why aren’t all the states required to recognize gay marriages performed legally in Massachusetts? Even if they refuse to issue marriage licenses to gay couples, they have no grounds to deny the validity of a marriage license issued elsewhere, nor to refuse couples with a valid marriage license the same benefits offered to any other married couple.

The obstacle usually cited is that Congress already passed (and, disappointingly, President Bill Clinton signed) a law called the Defense of Marriage Act, which forbids the federal government from recognizing gay marriage and grants an exemption to any state which does not wish to do so. But a simple law passed by Congress can’t overrule the Constitution, nor can the mini-DOMAs that many states have enacted on their own. DOMA is plainly unconstitutional, and it should be a no-brainer decision for any court to strike it down. I can’t see how even a conservative court, especially one allegedly committed to textual originalism, could avoid coming to that conclusion.

The second sentence of the clause offers no support for DOMA. It says that Congress may prescribe how the validity of a state proceeding is to be proven, but does not give a blanket grant of power for Congress or other states to completely refuse to recognize a valid proceeding. (Analogously, the Constitution gives the government the right to impose some reasonable conditions on firearms possession – “a well-regulated militia” – but not the right to ban gun ownership outright, as the Supreme Court ruled in District of Columbia v. Heller). To read the clause in that sense would completely strip it of meaning and is an unreasonable interpretation by any measure. (Law professor Joanna Grossman agrees, calling such a reading of the clause “perverse”).

Admittedly, this clause does give Congress the right to legislate what the effects of such recognition shall be. This conjures up the scenario of a legal contortion where gay marriage is “recognized”, but offers none of the benefits or privileges usually associated with marriage. However, I don’t think that scenario could ever come to pass. For Congress to grant the states a license to withhold benefits from gay couples, but not from heterosexual couples, would be a clear violation of the equal protection guarantees of the Fourteenth Amendment and would run counter to decades of clear Supreme Court jurisprudence. Again, I can’t see even a conservative court engaging in such a sweeping negation of precedent by ruling otherwise. The religious right could obtain a Pyrrhic victory by stripping the benefits of marriage from all couples, gay and straight alike, but I doubt they’d consider that outcome a desirable one.

This seems like fertile ground for some enterprising civil liberties group to bring a federal lawsuit, but I haven’t heard of any constitutional challenges being filed against DOMA. What’s holding us back?

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • Chris

    The stark fact that the Court would fudge the law in order to rule against homosexuals anyway. Sure, it would be the biggest travesty of an opinion since Bush v. Gore, but do you really think that would stop them? The current justices’ commitments to religions that demand the definition of marriage remain narrow exceed their commitments to the law and the Constitution. Knowing that, the ACLU etc. don’t want to bring the suit now and have an unfavorable precedent set.

    Also, if sexual orientation discrimination were federally recognized as a violation of the Fourteenth Amendment (the way the MA and CA supreme courts decided under similar state constitution language) DOMA *and* state bans on gay marriage would both be unconstitutional completely independent of the FF&C argument. The SC will find some way to weasel out of this conclusion if the issue is placed before them – probably finding that marriage discrimination has a “rational basis”, even though in reality, its basis is clearly irrational.

    If you’re not a bitter cynic about a court where Souter can be mistaken for a liberal by comparison with the rest of the bench, you just haven’t been paying attention. The first act of Congress Obama signed into law, the Ledbetter Fair Pay Act, was only necessary because the Roberts Court had taken an equally, if not more, strained construction of existing civil rights law, for example.

  • Mercredi

    You’re right, DOMA is clearly unconstitutional, and Loving vs Virginia makes it clear that marriage is a basic civil right. But for SCOTUS to have ruled that way during the Bush administration (pre-Roberts) would’ve caused public outcry about activist judges and the Repub majority in congress would’ve tried to cripple the courts. (IMO, this is also why they refused to rule on the constitutionality of “under God” in the pledge, even though it’s clearly unconstitutional based on the intent of those who added it.)

    Now we’re in the era of the Roberts Court, an era of “women shouldn’t be allowed to have some medical procedures that we’ll define vaguely because they’re too dumb to understand the circumstances”, “you have to magically find out about paycheck discrimination the first time it happens and sue within 180 days”, and it looks like very soon, “who cares if it was obtained illegally, it’s still evidence”.

  • exmachina

    A sidenote, but the “well-regulated Militia” phrase, as far as I know, does not refer to the idea that private gun ownership is permitted only insofar as it is in the form of a “well-regulated militia”. Just the opposite, in fact. There was a debate in congress as to whether or not they should even have a standing army, some thought privately armed citizens would be sufficient in times of peace and or minor conflicts. It was falsely presented as a kind of either-or issue, and the second amendment addresses both issues: While a well regulated militia (the army) is necessary, we still won’t be taking anyone’s guns away.

    I know it sounds like bullshit, but if you look at the state constitutions that predate the Federal constitution, many of them (Virginia’s in particular) contain similar clauses that more completely flesh out the issue.

    I’m not a gun-nut or anything, and I think certain types of gun control are totally appropriate (even with this interpretation, the clause was still written in a time before machine guns and rocket launchers), I just wanted to address a common misconception.

  • Theresa

    Chris & Mercredi are right. The court would probably be swayed by the social climate (including popular opinion, slowly swinging towards full civil rights; and the loudest opinions, still hysterically opposed to any move toward equality) in bending “full faith & credit” past the breaking point.

    The prominent legal defense organizations — Lambda, NCLRights, ACLU — are advising their consituencies to resist filing any challenge that may result in a bad precedent. Not being a lawyer, I’m willing to do what they say, and fight from the grassroots for the time being.

  • The Pink Ninja

    They’d just stall until the “We the people” act striped all your civil liberties anyway.

  • http://gretachristina.typepad.com/ Greta Christina

    The reason LGBT and civil rights groups aren’t challenging DOMA is that we absolutely do not want it to go in front of this Supreme Court.

    You’re totally right. DOMA is unconstitutional, pretty much on the face of it. But we have a very conservative Supreme Court right now, a Supreme Court that often doesn’t care that much about the finer points of the law (take a look at Bush v. Gore), and they’re unlikely to rule in our favor even if the Constitution is clearly on our side. And alas, the next couple of SCOTUS justices who are likely to resign are the more liberal ones.

    Add to that: SCOTUS doesn’t like to overturn itself. Once SCOTUS rules, even with a bad ruling, it can take a long time for it to fix it. It took 17 years for Bowers v. Hardwick to get overturned. As much as it sucks, we’d rather just wait and get this right the first time.

  • MV

    The question of DOMA’s constitutionality is controversial. Both sides support their view, so I am an oddity. I support gay rights, but I feel that DOMA, while it is wrong, is technically constitutional.

    The sticking point is the second line of that clause.

    “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

    It gives Congress the ability to regulate proof of full-faith and credit. That is why polygamy is illegal. The US government does not recognize multiple marriages under this law. DOMA does the same thing for gays.

    I dont like it, but that is how it is.

  • http://www.patheos.com/blogs/daylightatheism Ebonmuse

    I’m well aware that this Supreme Court will grasp at any excuse it can find to deny plaintiffs the due protection of law. (I’d add Hein v. FFRF to the other painful examples that Chris and Mercredi cited.) And I didn’t know that human-rights organizations were advising their members to refrain from making a challenge out of this. I have another question, though.

    As Greta points out, the oldest justices on the Court are the liberal ones. Even if President Obama gets the chance to make several appointments, they’re likely to, at best, preserve the current ideological balance. That means that the Court is unlikely to be friendly to our arguments for a long time to come. But given that this is true, what benefit is there to waiting? It’s not as if the odds of victory significantly improve if we wait for a few years.

    At worst, the Court would rule against us, and DOMA would be judged constitutional. But that would be no worse than the situation that already exists, where DOMA is on the books and we’re refraining from challenging it. Is the fear that they would set some more sweeping anti-gay precedent?

  • http://wilybadger.wordpress.com Chris Swanson

    Simple will is all that holds back the good guys from fighting this stupid legislation from this angle. I do find myself wondering why the ACLU hasn’t been on top of this. Maybe they consider it unwinnable? I dunno. I figure in the long run, we’ll have a court ruling requiring all states to recognize any legal marriages performed in other states. Not long after that, many state legislatures will realize, “Hey, instead of staying here and spending money on big, lavish gay weddings, these folk are going to Connecticut! This doesn’t give us any money! Let’s legalize it!” A little fiscal self-interest will go a long way.

  • Leum

    The real fear is precedent, Ebon. Once the court rules DOMA constitutional, similar laws can be more easily passed, the states will have more grounding for their mini-DOMAs, and–most importantly–the court is less likely to rule against DOMA and similar laws even with a liberal balance. The Supreme Court does not like to overrule itself, and when it does so accusations of judicial activism ring much truer than they normally do. It is harder to argue against a law that an earlier court ruled Constitutional than to argue against one the court has never heard.

  • staceyjw

    “”Let’s legalize it!” A little fiscal self-interest will go a long way.”

    If only that were true, pot and hemp would be legal and taxed, and the drug war would be over.
    Fear,hatred, prejudice, ignorance and plain old misunderstanding is what stops rational self interest.

    I want to know why we arent fighting for gay marriage by using the establishment clause- freedom of religion.
    Banning gay marriage IS religious in nature, there arent secular reasons for the ban. Even the so called secular reasons (ex. might break up family!) are based on biblical belief and norms- the very definition of family they are refering to.
    The ban and any enforcement is a violation of my freedom from religion, since I am being forced to follow the rules, beliefs and traditions that are not my own. I dont think homosexuals are evil or an abomination, so why should I have to be bound by rules made by those who believe that?
    Im on my PDA, so this isnt eloquent or complete. But I had to comment on it because it bugs me. If muslims passed a law requiring women to cover their heads, non-muslims would refuse and cry foul. How is this different?

    SJW

  • InTheImageOfDNA

    OFF TOPIC BUT OF VAST IMPORTANCE:

    Unless the website has been vandalized, I think Sam Harris has converted to some kind of Christy-theism.

    To quote: “The universe is rationally intelligible because the God of Abraham has made it so.”

    See here for it: http://www.edge.org/3rd_culture/coyne09/coyne09_index.html#tnr-coyne

    You’ll have to scroll and look, but it is the closest link I could get.

    (I’ve cross posted this same comment at GiFS and Pharyngula. I just thought all my favorite bloggers should know ASAP if it turns out to be true.)

  • InTheImageOfDNA

    To further quote Harris (Again, this is with the disclaimer that I think it may still be website vandalism):

    “And yet, there is more to be said against the likes of Coyne and Dennett and Dawkins (he is the worst!). Patrick Bateson tells us that it is “staggeringly insensitive” to undermine the religious beliefs of people who find these beliefs consoling. I agree completely. For instance: it is now becoming a common practice in Afghanistan and Pakistan to blind and disfigure little girls with acid for the crime of going to school. When I was a neo-fundamentalist rational neo-atheist I used to criticize such behavior as an especially shameful sign of religious stupidity. I now realize—belatedly and to my great chagrin—that I knew nothing of the pain that a pious Muslim man might feel at the sight of young women learning to read. Who am I to criticize the public expression of his faith? Bateson is right. Clearly a belief in the inerrancy of the holy Qur’an is indispensable for these beleaguered people.”

  • InTheImageOfDNA

    I’m sorry to keep posting but I think this is a huge story if it turns out to be true. Here’s another excerpt from Harris:

    “I am confident that Randall’s airplane adventure will mark a turning point in our intellectual discourse. Not only has she resolved all the contradictions between science and religion (and magic, voodoo, UFO cults, astrology, Tarot, palmistry, etc.), she has reconciled apparently conflicting religions with one another. Hindus worship a multiplicity of gods; Muslims acknowledge the existence of only one, and believe that polytheism is a killing offense. Do Hinduism and Islam conflict? Only “if your rules are logic.” Just as paths ascending a mountain slope can seem discrepant at the mountain’s base, and yet once we stand upon the summit, we find that all routes have led to the same destination—so it will be with every exercise of the human intellect! The Summit of Truth awaits, my friends. Simply pick your path….”

    The link again: http://edge.org/3rd_culture/coyne09/coyne09_index.html#rc

  • http://www.patheos.com/blogs/daylightatheism Ebonmuse

    Unless I’ve completely misread that essay, Harris is being sarcastic. Consider the following excerpt:

    When I was a neo-fundamentalist rational neo-atheist I used to criticize such behavior as an especially shameful sign of religious stupidity. I now realize—belatedly and to my great chagrin—that I knew nothing of the pain that a pious Muslim man might feel at the sight of young women learning to read. Who am I to criticize the public expression of his faith?

  • CommiusRex

    @ InTheImageOfDNA – Er… Sam Harris is quite clearly taking the piss here. He’s being sarcastic, dude…

  • InTheImageOfDNA

    It’s quite a strange way to be sarcastic…among serious essays.

  • InTheImageOfDNA

    Well it seems, Harris tried his hand at being a Poe and won, at least agianst me.

  • Maynard

    Please correct me if I’m wrong here, but isn’t the governments only real interest in marriage for tax purposes?
    Here in Texas they have been busy levying “sin taxes” on tabacco and alcohol purchases and even cover charges for topless bars. How is this any different in the eyes of the religious? If you tax it, I will still pay if I want it.
    Marriage should be left to religious ceremonies and the gov. should stick with civil unions for all consenting adults whether hetero,homo,poly,etc. Everyone deserves the same (mis)treatment.

    DNA
    Harris’ response to Coyne caught me off guard too. I thought I was in a Bizarro world for awhile. I would have appreciated a few colons or semi-colons and closing parentheses.

  • Jim Baerg

    staceyjw

    “”Let’s legalize it!” A little fiscal self-interest will go a long way.”

    If only that were true, pot and hemp would be legal and taxed, and the drug war would be over.
    Fear,hatred, prejudice, ignorance and plain old misunderstanding is what stops rational self interest.

    Whose self interest?
    It is in the self interest of people who sell illegal drugs to keep out legal competition & it is in the self interest of people who are paid to enforce drug laws to keep the laws on the books.

    In the case of ‘gay marriage’ there are people whose business model is to get donations for opposing it. (Rather similar to Greenpeace’s business model w.r.t. nuclear power)

  • Mercredi

    Maynard – The government has an interest in civil marriage in more ways than just taxes. Go to the website of an organization like Lambda Legal or the HRC, and they’ll happily enumerate many of the legal rights and responsibilities that come with civil marriage. Power of attorney, visitation rights, the right to refuse to testify against one’s spouse, issues of custody and property after death, issues pertaining to legal residency in the country…

    We already have a system where religious marriage and civil marriage are separate. There are really only two places (besides gay marriage bans) that they intersect: a clergyperson can be involved in the performing of the civil marriage, and we still prohibit religious polygamy. Otherwise, you can marry legally but not religiously, you can marry religiously but not legally… and gays have been religiously marrying for years with the UU’s and other progressive religious denominations.

  • Maynard

    Mercredi,
    Thanks for the clarification and resources.

  • http://goddesscassandra.blogspot.com Antigone

    Really off-topic, but congratulations: you’re number 12 in the Top 30 Agnostic/Atheist blogs!

  • http://anexerciseinfutility.blogspot.com Tommykey

    Unfortunately, it also does not help the gay marriage movement when the first gay couple to get married in Massachusetts gets divorced.

    Of course, as someone who supports gay marriage, I don’t expect that every same sex marriage is going to be a model of domestic bliss. But for f-ck’s sake, if a same sex couple is going to be the standard bearer for same sex marriage, it would be nice if their own marriage actually endured longer than a typical Hollywood celebrity marriage.

    http://news.yahoo.com/s/ap/20090203/ap_on_re_us/gay_marriage_divorce

    Regrettably, this plays right into the hands of religious conservatives opposed to same sex marriage.

    http://www.lifesitenews.com/ldn/2009/feb/09020315.html

    I expect I will catch some flak for this, but the sad truth of the matter is that people prominent in advancing civil rights causes have to be something approaching perfect. For example, everyone remembers Rosa Parks, who became famous for refusing to give up her seat to a white person on a bus. What most people don’t know is that she was not the first African-American woman arrested for the violation. Several other African-American women had also been arrested for the same thing before Rosa Parks, but the civil rights activists pushing to end segregation on the buses decided not to take their cases because they had issues. If I recall, one of the women had a child out of wedlock. Rosa Parks was chosen to be the public face of the movement because she didn’t have any negatives that anyone could pin on her.

    It was also why Jackie Robinson was chosen by Brooklyn Dodgers owner Branch Rickey to be the first African-American player to play in the major leagues. Jackie Robinson was seen as a clean-cut fellow who wouldn’t embarass Rickey.

    Again, to reiterate, just so that no one misunderstands me, I understand that legalizing same sex marriage does not mean that every same sex marriage is going to be perfect. But I believe that the couples in the vanguard of fighting for the right to marry should be dead certain that they are committed to each other for the long haul and recognize that they are setting an example for others to follow.

  • http://gretachristina.typepad.com/ Greta Christina

    At worst, the Court would rule against us, and DOMA would be judged constitutional. But that would be no worse than the situation that already exists, where DOMA is on the books and we’re refraining from challenging it. Is the fear that they would set some more sweeping anti-gay precedent?

    The fear is that, if SCOTUS upholds DOMA, it will be much harder for that ruling to be overturned later — because the Supreme Court doesn’t like to overturn itself. Even a good Court that would likely overturn DOMA is less likely to overturn a previous SCOTUS ruling that upholds it.

    Yes, right now, we have to wait for a ruling until we have a good Supreme Court that gives a damn about the Constitution. We may have to wait a while. But if we get a bad ruling that goes against us, we’ll have to wait even longer.

  • http://www.chl-tx.com TX CHL Instructor

    The door swings both ways, you know. The People’s Republics of Massachusetts, New York, California, Minnesota, et. al., have not only repealed Article IV, but also the 2nd Amendment. None of those states recognize the Texas Concealed Handgun License. The COTUS may not be perfect, but it sure beats what we are living under right now.

    http://www.chl-tx.com Many thanks to the Chicago Politician with the Blank Resume for the enormous boost he has given my business!

  • Theresa

    It looks like DOMA is not entirely off the federal docket, and there are positive signs of a challenge moving towards winnability (thanks to Arthur Leonard for this report):

    9th circuit judges grapple with DOMA

  • Theresa

    so sorry, here is the working link:

    9th circuit judges grapple with DOMA

  • Alex Weaver

    The door swings both ways, you know. The People’s Republics of Massachusetts, New York, California, Minnesota, et. al., have not only repealed Article IV, but also the 2nd Amendment. None of those states recognize the Texas Concealed Handgun License. The COTUS may not be perfect, but it sure beats what we are living under right now.

    Oh, it’s worse than that: since no state in the United States allows private possession of nuclear missiles, they’re ALL violating the Second Amendment.

    (Or would you argue that it’s reasonable to draw the line and restrict the keeping and bearing of certain kinds of “arms?”)

  • http://anexerciseinfutility.blogspot.com Tommykey

    Many thanks to the Chicago Politician with the Blank Resume for the enormous boost he has given my business!

    Yeah, it’s funny how so many excoriated Obama for saying that there is a segment of the population of this country that clings to guns, and then when he gets elected, they go out and prove he was right all along.

  • http://www.patheos.com/blogs/daylightatheism Ebonmuse

    The fear is that, if SCOTUS upholds DOMA, it will be much harder for that ruling to be overturned later — because the Supreme Court doesn’t like to overturn itself. Even a good Court that would likely overturn DOMA is less likely to overturn a previous SCOTUS ruling that upholds it.

    I bow to the expert. Thanks, Greta and everyone, for helping me understand this.

    With the Supreme Court a risky wager for the foreseeable future, it seems to me that the legislative avenue is (marginally) more promising. I believe that Barack Obama, while a candidate, stated his opposition to DOMA and pledged that if elected, he would support its repeal. Personally, I’ll be surprised if even a Democratic Congress has the desire or the courage to do that. But human-rights groups have nothing to lose by applying the pressure as early as possible.

  • https://exsistosane.blogspot.com Mark

    I completely agree with your reading of the full faith and credit clause. I think those who would bring the case fear a constitutional amendment. A simple case of being careful what you wish for. It is clearly unconstitutional and it will be eventually deemed to be by the courts but probably not until such a time that it is safe.

    Now, I have a bone to pick with you on your second amendment argument. Many of us believe that “a well-regulated militia” simply means a standing army and/or reserve unit. In my opinion it does not provide an individual right to a firearm, only that communities and governments can protect themselves.

    Having said that, the common argument is that of a dictator in control of the country, or some such nonsense? However, if such an unfortunate predicament should come to pass my rights would no longer be relevant to my actions.

    A careful reading does support this opinion, it is more of a stretch to justify the status quo.

    Still, I didn’t come here to argue the second amendment with you, just to say kudos on a good post and that I agree with you (on full faith and credit).

  • macevoy

    if demographics take their natural course, then a clear majority of americans will favor or at least accept the principle of gay marriage in ten or twenty years outside, and the fact of law will follow. this is simply not an issue for people under 40 years of age.

    twenty years is the pessimistic horizon. favorable trends in court appointments, lower fed and state court rulings (including the california court review of proposition 8), etc., and a national movement of nonconfrontational self outing by prominent gay celebrities, and more importantly by millions of friends, coworkers and neighbors, could make things happen much sooner.

    it’s important to remember that people strongly opposed to gay marriage hold so for deeply personal, emotional and irrational reasons, and these same people are not stellar at insight and empathy. at bottom is their belief that their faith cannot be wrong and that the almighty creator expects them to rise up against iniquity. if gay marriage became national policy before a sufficient ripening of social opinion and legal foundation, it would be unpleasant for all of us.

  • http://uncyclopedia.org/wiki/User:Modusoperandi Modusoperandi

    Tommykey “But I believe that the couples in the vanguard of fighting for the right to marry should be dead certain that they are committed to each other for the long haul and recognize that they are setting an example for others to follow.”
    Typical. First “they” ruin the sanctity of marriage. Now they’ve ruined the sanctity of divorce! What next, ruin the sanctity of instilling one’s own fears, failures and prejudices in one’s kids?
    Outrage!


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