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?

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About Adam Lee

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


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