Most of the original Constitution focuses on creating the federal government, defining its relationship to the states and the people at large. Article IV addresses something different: the states’ relations with each other, sometimes called “horizontal federalism.” Its first section, the Full Faith and Credit Clause, requires every state, as part of a single nation, to give a certain measure of respect to every other state’s laws and institutions.
The first part of the Clause, largely borrowed from the Articles of Confederation, requires each state to pay attention to the other states’ statutes, public records, and court decisions. The second sentence lets Congress decide how those materials can be proved in court and what effect they will have. The current implementing statute, 28 U.S.C. § 1738, declares that these materials should receive “the same full faith and credit” in each state that they have in the state “from which they are taken.”
These broad statements of principle don’t always translate well to specifics. States will take note of each other’s public records, but they aren’t always expected to give these records precisely the same effect that they have at home. (A fishing license from one state doesn’t give you the right to fish anywhere else.)
The Clause and federal implementing statute also have a relatively light impact on state statutory law. As the Supreme Court has recognized, when two states’ laws are in conflict, it’s impossible for both of them to give effect to each other’s law at the same time. Alaska Packers Association v. Industrial Accident Commission (1935). In situations where either state’s laws could plausibly apply (say, a car accident in Florida between two residents of New York, where the two states have different ideas about how to parcel out damages), the Clause exerts relatively little force. Under the prevailing standard in Allstate Insurance Co. v. Hague (1981) and Phillips Petroleum Co. v. Shutts (1985), depending on where the case is filed, either court can apply its own state’s law to the dispute—so long as that state has “a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.”
Once a court has made a decision, though, the Clause has real teeth. So long as a state court has authority over the case and the parties, its judgments will conclusively determine the parties’ rights in every other state—even if it might be wrong on the law, and even if the judgment violates public policy in the state where it’s enforced. One state’s judgment on a gambling debt can still be collected in another state where gambling is a crime, as the Court established in Fauntleroy v. Lum (1908).
In recent years, the most controversial applications of the Full Faith and Credit Clause have involved family law. Each state has slightly different laws about marriage, and marriages themselves typically aren’t treated as judgments receiving nationwide effect. Until recently, same-sex marriages formed in one state weren’t always recognized elsewhere. Congress attempted to use its power under the Clause to slow the recognition of same-sex marriages by passing the Defense of Marriage Act—1 U.S.C. § 7; 28 U.S.C. § 1738C—but this was rendered obsolete by the Supreme Court’s decision in Obergefell v. Hodges (2015). Other marriages are still treated differently in different states, which have conflicting rules about marriages by young people or between close relatives. But because divorces often take the form of court judgments, they usually do receive nationwide effect, so long as the issuing court had the necessary authority over the parties. Congress has rarely used its power under the Clause, but it has passed statutes clarifying which courts may issue orders on child custody—28 U.S.C. § 1738A—and child support—28 U.S.C. § 1738B—when a family is spread across multiple states.
Article IV, Section 1, was supposed to do two things: to help states identify public documents from other states, and to let Congress specify those documents’ legal force. Over time, though, those purposes were slowly forgotten. Ignorant of the history, courts have relentlessly misinterpreted the Clause in a way that diminishes Congress’s powers and enlarges their own.
In early America—a time before copy machines, when nothing moved faster than a horse—courts rarely knew which handwritten document was actually another state’s statute, or which half-illegible wax seal actually belonged to some county court many weeks’ travel away.
To avoid conflict, Article IV of the Articles of Confederation said that each state’s documents should get “Full Faith and Credit” elsewhere. This was a standard phrase about evidence; business documents bearing a corporation’s seal might get “Full Faith and Credit” when they were treated as authentic in court, without needing any witnesses to testify about how they were made. So the newly independent states were obliged to do, as James Wilson later said during the Convention of 1787, “what now takes place among all Independent Nations”: to treat other states’ documents as genuine, once they were adequately proved.
But each state had different rules about how to prove them, and what the documents should look like—for instance, which ones needed which seals, or which had to be signed by which officers. And even if a document was genuine, courts disagreed on what legal force it had outside its home state’s borders. So a committee in 1781 recommended that Congress make those rules: setting a uniform standard that every state’s documents could meet, and declaring their legal effect.
This essay is part of a discussion about the Full Faith and Credit Clause with Steve Sanders, Associate Professor of Law, Indiana University Maurer School of Law. Read the full discussion here.
That’s what the Constitution did. The first sentence of Article IV, that “Full Faith and Credit shall be given,” largely copied the Articles’ rule—which James Madison saw in The Federalist No. 42 as “of little importance under any interpretation which it will bear.” It made states recognize each other’s documents (now including legislative acts) without saying how to authenticate them, or what legal effect they’d have. Instead, the Clause’s next sentence gave those powers to Congress. In 1790, Congress passed a statute setting out the evidence rules, and requiring that certain records and court judgments—but not statutes—have “such faith and credit given to them in every court” as they had at home. Act of May 26, 1790, ch. 11, 1 Stat. 122.
Courts disagreed about what this meant, and Congress eventually gave up trying to clarify it. See Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201 (2009). As the Supreme Court read it, each state had to recognize other states’ court judgments as conclusive. Mills v. Duryee (1813). But they could use different remedies to enforce them—see McElmoyle v. Cohen (1839)—and only if the other state had authority to decide the case in the first place. D’Arcy v. Ketchum (1850). For a hundred years, courts never suggested that the Clause or the statute made one state apply another’s laws—until a confused decision in Chicago & Alton Railroad Co. v. Wiggins Ferry Co. (1887) suggested as much. See David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L.J. 1584, 1589 (2009).
Since then, the Supreme Court has treated the Clause as an almost mystical source of national unity—and, when states do disagree, as empowering “this Court to choose in each case between the competing public policies involved.” Hughes v. Fetter (1951). The Court usually lets each state favor its own laws, as in Allstate Insurance Co. v. Hague (1981)—except when it doesn’t, as in Franchise Tax Board of California v. Hyatt (2016)—creating plenty of confusion for those whose interests cross state lines. In other words, the discretion the Founders meant for Congress has now been taken up by the Court.
These kinds of problems are better ones for Congress to decide. Should 14-year-olds be able to elope in another state if they can’t get married at home? Whose law governs contracts made over the Internet, or major accidents with victims in many states? Everyone has something at stake in these questions; and if we’re going to change the answers, we should do it through elected representatives for whom everyone votes. That’s what the Full Faith and Credit Clause said, and hopefully one day the courts will listen.
The purpose of the Full Faith and Credit Clause, the Supreme Court said in Allstate Insurance Co. v. Hague (1981), was “to transform the several states from independent sovereignties into a single, unified Nation.” The great Justice Robert Jackson, who made himself something of a scholar of the Clause, argued that “[w]here there is a choice under the full faith and credit clause, the one should be made . . . which best will meet the needs of an expanding national society for a modern system of administering . . . a more certain justice.” Robert H. Jackson, Full Faith and Credit: The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1 (1945).
Today, Article IV, Section 1 is rarely the subject of controversy or Supreme Court attention. It is well settled that final court judgments rendered in one state must be honored in every other state—there is no “roving ‘public policy exception’” to the principle of mandatory recognition for judgments. Baker v. General Motors Corp. (1998). This principle is consistent with the high premium that law places on the finality of judgments, perhaps together with the idea advanced by some jurists and scholars that the Full Faith and Credit Clause was originally intended foremost as a command to state courts.
Ordinary laws and statutes, however, are a different story. Because the United States is a highly mobile and interconnected society, scenarios often arise where one event—for example, a claim under an automobile insurance policy—could plausibly be governed by the law of more than one state. The Supreme Court has consistently held that as a general rule every state is entitled to make its own laws, and so a state is allowed to apply its own law in its own courts as long as it has sufficient contacts with the matter being adjudicated. One state generally is not required to bow to the ideas of other states on matters of public policy.
This essay is part of a discussion about the Full Faith and Credit Clause with Stephen E. Sachs, Professor of Law, Duke University Law School. Read the full discussion here.
This makes sense: much regulation of our daily lives still takes place at the state level; the states are coequal sovereigns; and the idea of states as laboratories of policy innovation continues to have appeal. But what about state laws that not only express a state’s public policy and regulate behavior within its territory but also confer an important legal status, such as marriage or parenthood? Both marriage and parenthood create well-established bundles of legal rights. If State A creates a marriage or a parent-child relationship, should State B be allowed not only to ignore the status but also to deny—even effectively terminate—the legal rights entailed by that status? This question remains perhaps the most significant unresolved dilemma in the modern law of Full Faith and Credit.
Until the Supreme Court in Obergefell v. Hodges (2015) held that the Due Process and Equal Protection provisions of the Constitution’s Fourteenth Amendment required same-sex marriage to be legalized nationwide, many states refused to recognize same-sex marriages performed in other states, sometimes even going as far as to declare such marriages “void” or “invalid.” See Steve Sanders, The Constitutional Right to (Keep Your) Same-sex Marriage, 110 Mich. L. Rev. 1421 (2012). The conventional wisdom among scholars was that the Full Faith and Credit Clause was no help to couples whose marriages were not recognized, because marriage is simply another subject for ordinary state lawmaking—no different from things like workers’ compensation, insurance regulation, or natural gas royalties—where, under the Supreme Court’s precedents, each state gets to decide policy for itself.
Yet that conventional wisdom can be questioned, because it fails to account for the important vested personal rights that arise from marriage—especially rights over things like property, children, and inheritance, rights whose purpose is to vindicate both the couple’s and society’s interest in stability, equity, and predictability in the marital relationship. See Steve Sanders, Is the Full Faith and Credit Clause Still ‘Irrelevant’ to Same-Sex Marriage?: Toward a Reconsideration of the Conventional Wisdom, 89 Ind. L. J. 95 (2014). Moreover, the conventional wisdom seems difficult to reconcile with the deeply embedded American legal tradition of treating marriage as a sui generis legal construct, a presumptively lifelong status from which there can be no exit without the state’s permission through divorce. The Supreme Court has long described marriage as “the foundation of the family and of society.” Maynard v. Hill (1888).
Same-sex marriage was settled by a ruling under the Fourteenth Amendment, and comity in interstate recognition of marriages has always been the rule rather than the exception. Yet the fact remains that, unless and until the Supreme Court says otherwise, states continue to have no constitutional obligation under Full Faith and Credit to recognize other disfavored types of marriage (such as marriages between first cousins) with which they disagree.
The federal circuits are split on another question of family law under Full Faith and Credit: to what extent and in what manner should one state be required to recognize an adoption procured by a couple in another state? See Thomas M. Joraanstad, Half Faith and Credit?: The Fifth Circuit Upholds Louisiana’s Refusal to Issue a Revised Birth Certificate, 19 Wm. & Mary J. Women & L. 421 (2013). Because adoptions are finalized by court judgments, one view holds that any adoption should be recognized by all other states for all purposes, even if it violates the public policy of the “receiving” state (because, for example, it involves an unmarried couple). This is the better view, given the importance of certainty and stability in the parent-child relationship. But an outlier decision from the Fifth Circuit U.S. Court of Appeals in Adar v. Smith (2011) held that Louisiana was not required to issue a new birth certificate recognizing two unmarried men as the parents of a Louisiana-born child whom they had adopted in New York. The appeals court reasoned that the Full Faith and Credit command binds state courts but not non-judicial actors such as the administrative officials who oversee a state’s birth records. The U.S. Supreme Court declined to hear the parents’ petition for review.