Full Faith and Credit and Public Policy

[Steerpike]

Jillian and I were talking about this in another thread. There are a number of cases in the various circuits, but I'll stick to the Supreme Court decisions.

Bradford Electric Light Co. v. Clapper 286 U.S. 145 (1932)

This is still the leading example case of its type according to the Horn Book on the subject. In a dispute between Vermont and New Hampshire, the Court "recognized tthat a court might refuse to enforce a foreign cause of action if obnoxious to its policy..."

By foreign they meant another state.


Pacific Employers Inc. Co. v. Industrial Accident Commission 306 U.S. 493 (1939)

"While the Court examined the conflicting interests of the states, it simply held that the Full Faith and Credit Clause did not require a state to ignore its policy to enforce another state's statute."

In a later case citing to Pacific, in 1955, the Court noted that it had, in Pacific, "recognized that Full Faith and Credit did not require application of a foreign statute that conflicts with the policy of the forum." Again, by 'foreign' they were referring to another state.


Nevada v. Hall 440 U.S. 410 (1979) the Court held that California could refuse to give Full Faith and Credit to a Nevada act under the reasoning that the Nevada act was "obnoxious" to the policies of California.

 

[RetiredGySgt]

Jillian and I were talking about this in another thread. There are a number of cases in the various circuits, but I'll stick to the Supreme Court decisions.

Bradford Electric Light Co. v. Clapper 286 U.S. 145 (1932)

This is still the leading example case of its type according to the Horn Book on the subject. In a dispute between Vermont and New Hampshire, the Court "recognized tthat a court might refuse to enforce a foreign cause of action if obnoxious to its policy..."

By foreign they meant another state.


Pacific Employers Inc. Co. v. Industrial Accident Commission 306 U.S. 493 (1939)

"While the Court examined the conflicting interests of the states, it simply held that the Full Faith and Credit Clause did not require a state to ignore its policy to enforce another state's statute."

In a later case citing to Pacific, in 1955, the Court noted that it had, in Pacific, "recognized that Full Faith and Credit did not require application of a foreign statute that conflicts with the policy of the forum." Again, by 'foreign' they were referring to another state.


Nevada v. Hall 440 U.S. 410 (1979) the Court held that California could refuse to give Full Faith and Credit to a Nevada act under the reasoning that the Nevada act was "obnoxious" to the policies of California.

Not the same as Marriage. What next? Allowing Texas to ignore Utah Birth Certificates because they do not like the religion of the group? Either a State recognizes marriage or it does not. If a State wants to ignore the marriages of gays from Massachusetts it has to ignore ALL marriages from that State.

 

[Steerpike]

Not the same as Marriage. What next? Allowing Texas to ignore Utah Birth Certificates because they do not like the religion of the group? Either a State recognizes marriage or it does not. If a State wants to ignore the marriages of gays from Massachusetts it has to ignore ALL marriages from that State.

The Full Faith and Credit clause of the Constitution doesn't distinguish between marriage and other acts or judgments. And no, to ignore gay marriage you wouldn't have to ignore all marriages from a particular state. That's a baseless assertion.

 

[Steerpike]

Here is a quote from a Slate article:

The legal truth is that conservatives never needed DOMA in the first place—hysterical posturing notwithstanding, it's by no means a given that other states would be forced to recognize Massachusetts marriages. For one thing, there is an established trapdoor to the full faith and credit clause: The courts have long held that no state should be forced to recognize a marriage sanctioned by another state if that marriage offends a deeply held public policy of the second state. States have been permitted to refuse to recognize marriages from states with different policies toward polygamy, miscegenation, or consanguinity for decades. At this point, 39 states have passed mini-state-sized DOMAs that proscribe marriage for gay couples, often elaborately saying that it violates their public policy. This strongly suggests that the public policy exemption would be triggered, and states would be free to choose for themselves whether to sanction gay marriages.

In fact, I remember when people in favor of gay marriage in a particular state were making this exact argument to counter the conservatives - noting that just because one state allows it not every state will have to recognize it.

 

[RetiredGySgt]

The Full Faith and Credit clause of the Constitution doesn't distinguish between marriage and other acts or judgments. And no, to ignore gay marriage you wouldn't have to ignore all marriages from a particular state. That's a baseless assertion.

Whats baseless is your assertion that States can pick and chose what marriages to recognize. So when a balck man marries a white woman and it was "foreign" to the South in the 60's, did they get to IGNORE the Marriage?

 

[Steerpike]

Whats baseless is your assertion that States can pick and chose what marriages to recognize. So when a balck man marries a white woman and it was "foreign" to the South in the 60's, did they get to IGNORE the Marriage?

Read the last post with the article from Slate.

The author is Dahlia Lithwick. A lawyer and one of their senior editors.

You simply have the facts wrong. Period.

 

[Gunny]

Whats baseless is your assertion that States can pick and chose what marriages to recognize. So when a balck man marries a white woman and it was "foreign" to the South in the 60's, did they get to IGNORE the Marriage?

You're missing the point. Texas has a law. voted on by referendum that states marriage is a union that exists solely between a man and a woman.

The legal precedent set is that states do NOT have to honor conflicting laws of other states.

You can argue until you're blue in the face about it, but the fact remains THAT is how it stands from a legal standpoint until or unless Congress or the Supremes steal THAT authority from the states as they have so many other.

 

[RetiredGySgt]

You're missing the point. Texas has a law. voted on by referendum that states marriage is a union that exists solely between a man and a woman.

The legal precedent set is that states do NOT have to honor conflicting laws of other states.

You can argue until you're blue in the face about it, but the fact remains THAT is how it stands from a legal standpoint until or unless Congress or the Supremes steal THAT authority from the states as they have so many other.

Wrong again. Full Faith and Credit is clear and precise. Federal Authority trumps Satte Authority every single time.

Told ya Jillian, this si why we need something specific. Because the masses think it is ok to ignore anything they do not like. Get rid of State Sponsored Marriage and replace it with Civil Unions. Thinking that it is ok to ignore the legal acts of one State because you do not like them is going to tear us apart.

 

[Steerpike]

Wrong again. Full Faith and Credit is clear and precise. Federal Authority trumps Satte Authority every single time.

Told ya Jillian, this si why we need something specific. Because the masses think it is ok to ignore anything they do not like. Get rid of State Sponsored Marriage and replace it with Civil Unions. Thinking that it is ok to ignore the legal acts of one State because you do not like them is going to tear us apart.

Unfortunately for you, and as stated in excerpt you ignored, the fact is courts have been doing this for a long time, and the Supreme Court has specifically endorsed it at times. So obviously there are exceptions to Full Faith and Credit.

 

[Ravi]

Here is a quote from a Slate article:



In fact, I remember when people in favor of gay marriage in a particular state were making this exact argument to counter the conservatives - noting that just because one state allows it not every state will have to recognize it.

Which states allow polygamy, miscegenation, or consanguinity?

 

[tauriaphelion]

there are many states that allow, more than half of the 50, marriages between cousins. There are also some that allow marriage between direct relations, meaning the immediate family, so long as both members are sterilized first so as to produce no children.

Tauri Aphelion

 

[Steerpike]

Which states allow polygamy, miscegenation, or consanguinity?

Consanguinity varies from state to state. The others were allowed in some state historically and not in others.

 

[tauriaphelion]

There are many states, more than half, that allow marriage between first or second cousins. There are also a handful of states that will allow marriage between the immediate family, and some of those states stipulate that the couple must first be sterilized to prevent offspring.

Tauri Aphelion

 

[Ravi]

Consanguinity varies from state to state. The others were allowed in some state historically and not in others.

So she's basing her opinion on something that isn't legal in any state, something that is now a constitutionally protected right, and something that may be legal between cousins but isn't anywhere in the country between siblings and/or parents and children. I'm pretty sure marriages between first cousins receive no scrutiny in another state.

I'm not sure I buy her argument.

 

[Steerpike]

So she's basing her opinion on something that isn't legal in any state, something that is now a constitutionally protected right, and something that may be legal between cousins but isn't anywhere in the country between siblings and/or parents and children. I'm pretty sure marriages between first cousins receive no scrutiny in another state.

I'm not sure I buy her argument.

No, it's a legal determination. The point is that there is an established exception to Full Faith and Credit. Regardless of the legality of bigamy etc. the exception to full faith and credit is still there and it still valid law. There's no reason to think it won't be applied to homosexual marriage. It will be. And if it gets to the Supreme Court, I say better than even odds they uphold it, as they've done at times in the past.

The current legality of bigamy, etc. is irrelevant. It's just an example to prove that the exception to Full Faith and Credit is there.

 

[Ravi]

No, it's a legal determination. The point is that there is an established exception to Full Faith and Credit. Regardless of the legality of bigamy etc. the exception to full faith and credit is still there and it still valid law. There's no reason to think it won't be applied to homosexual marriage. It will be. And if it gets to the Supreme Court, I say better than even odds they uphold it, as they've done at times in the past.

The current legality of bigamy, etc. is irrelevant. It's just an example to prove that the exception to Full Faith and Credit is there.

But the current legality of interracial marriage isn't irrelevant. Though I have to wonder if bigamy isn't relevant, why did she bring it up?

 

[Steerpike]

But the current legality of interracial marriage isn't irrelevant. Though I have to wonder if bigamy isn't relevant, why did she bring it up?

It's irrelevant to the point of the article, which is that the exception exists.

 

[Gunny]

Wrong again. Full Faith and Credit is clear and precise. Federal Authority trumps Satte Authority every single time.

Told ya Jillian, this si why we need something specific. Because the masses think it is ok to ignore anything they do not like. Get rid of State Sponsored Marriage and replace it with Civil Unions. Thinking that it is ok to ignore the legal acts of one State because you do not like them is going to tear us apart.

I am not wrong. You HAVE something specific. You just refuse to look at it. You have 3 court cases that set legal precedents. The court interprets the law. In all 3 cases the court interpretted the law to say states are not required to abide by laws from other states that conflict with their own.

End of story. The facts presented are plain and clear. Federal authority does NOT trump state authority every single time and THAT is NOT what the US Constitution says. The Constitution states that any authority not granted to the Fed BY THE CONSTITUTION is granted to the states. Marriage is not covered in the Constitution; therefore, it falls to the states.

I have no doubt that you'll get your little one federal government dream on this, but at this point in time you DON'T have it, and the Fed will have to violate the Constitution (again) and usurp the authority of the states (again) to do it.

 

[RetiredGySgt]

I am not wrong. You HAVE something specific. You just refuse to look at it. You have 3 court cases that set legal precedents. The court interprets the law. In all 3 cases the court interpretted the law to say states are not required to abide by laws from other states that conflict with their own.

End of story. The facts presented are plain and clear. Federal authority does NOT trump state authority every single time and THAT is NOT what the US Constitution says. The Constitution states that any authority not granted to the Fed BY THE CONSTITUTION is granted to the states. Marriage is not covered in the Constitution; therefore, it falls to the states.

I have no doubt that you'll get your little one federal government dream on this, but at this point in time you DON'T have it, and the Fed will have to violate the Constitution (again) and usurp the authority of the states (again) to do it.

Good plan, lets just have every State ignore the legal papers and authority of every other State, wanna move, gotta get remarried and do all your legal documents in the other State, petition for a new Birth Certificate and all that other fun stuff. Can't buy insurance in one State and expect it to be paid in another so we can break up all the large Insurance Companies of all kinds. This would be great, absolute anarchy across the Country, all cause you do not want to recognize Federal authority. IT is covered in the Constitution.

Here ya go, the very clause of the Constitution that applies.

Section 1. 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.

http://www.law.cornell.edu/constitution/constitution.articleiv.html#section1

Marriage is a public act and generally a Judicial proceeding as well ,not to mention a legal record.

 

[Steerpike]

Here ya go, the very clause of the Constitution that applies.



http://www.law.cornell.edu/constitution/constitution.articleiv.html#section1

Of course as you probably know the Constitution has always been subject to interpretation by the Courts, and the current state of the law is that there is an exception. There is not exception stated in the Constitution, but there are no exceptions stated to free speech either, but those exist.