Interpretation Full Faith and Credit: Some Lingering Dilemmas
by: Steve Sanders
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.