Each State Should Be Able to Make Its Own Decision

The House is expected to vote today on the Defense of Marriage Act, a measure that would allow each state to decide for itself whether to recognize same-sex marriages from other states. It doesn’t ban same-sex marriages or condemn them. It only says that each state should decide for itself.

I believe homosexual couples should have all the rights enjoyed by heterosexual couples. But I also believe this law is appropriate.

Some have criticized this proposed statute as unconstitutional, under Article IV, which states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The second sentence of Article IV, however, adds: “And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

This second sentence was added at the Constitutional Convention. The first sentence had appeared in the Articles of Confederation and compelled all states to accept other states’ decisions. The purpose of the second sentence of Article IV was to give Congress discretion to create exceptions to this mandate.

One treatise on the Constitution, prepared by the Library of Congress in 1987, states that Congress “may under the [full faith and credit] clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union . . . and that no other kind shall.” Change the word “divorce” to “marriage” and the syllogism is complete.

This power given to Congress was necessary to smooth out the difficulties inherent in giving any one state the absolute power to dictate, through its statutes and court decisions, conduct in other states. Rules about marriage are a particularly appropriate subject matter for the exercise of this congressional power. The normal rule in common law makes a marriage that was legal where performed legal everywhere else. Yet the normal rule could lead to results contrary to the rules of other states, on issues regarding bigamy or age of adulthood, for example.

Some answer that despite the full faith and credit clause, these other states could simply pass their own laws saying they won’t recognize other states’ same-sex marriages, so no federal law is needed. Maybe. This is the so-called “public policy” exception to the full faith and credit clause, occasionally recognized by Supreme Court interpretation over the years. Sometimes the court has allowed such an exception; sometimes it hasn’t.

The framers of the Constitution, however, did not provide for this state-by-state public policy exception. That evolved only through court decisions. The framers provided another mechanism to solve the problem of interstate friction over matters like this, and it can be found in the second sentence of Article IV.

Congress has already used its power in the area of child support and custody. The federal child support statute requires that each state enforce the child support orders of other states. But under a 1994 statute, the second state is not obliged to accept the first state’s order if all the parties have moved out of the original state.

The principle enunciated here is directly related to the issue of same-sex marriages. When the couple is in Hawaii, only Hawaii should govern. But, if the couple moves to California, Hawaii’s interest terminates and California law applies.

The three conclusions we can draw then are:

Congress has discretionary power under Article IV.

In family matters, when residence changes, Congress has considered it good social policy to create an exception from the full faith and credit clause to ensure that the law of the current residence controls, not the law of the place that made the first decree.

Accordingly, decrees regarding marriage can also be exempted from the full faith and credit clause to ensure that the law of the current residence prevails, thus preventing one state’s legal recognition of same-sex marriages from automatically applying in another.

Committed relationships between adults should be encouraged in our society. The desire to visit a loved one in a hospital is as valid for same-sex couples as for opposite-sex couples. While California recognizes opposite-sex marriages from Hawaii, the recognition of same-sex marriages is, for better for worse, a more significant departure from California’s existing public policy. It should be adopted or not by vote of California’s Legislature or by the people directly through initiative, not by the action of a justice of the peace in another state.