I don't see how anyone can think that the FC&C clause won't force a marriage in one state to be recognized in another. That's old law.

Ask yourself: Suppose that Thomas and Lillie are married in state A, and one of them wants a divorce. But the laws of state A only permit divorce for cause. So Lillie runs off to state B, where she lives for several weeks in a hotel to establish residency. She then asks for a divorce from a state B court, where the divorce laws are much looser. The state B court grants the divorce, and Lillie moves back to state A.

Is state B's divorce decree valid in state A, even though the state A legislature finds state B's divorce laws to be repulsive?

Yes, of course! You can read the US Supreme Court case right here: WILLIAMS v. STATE OF NORTH CAROLINA, 317 U.S. 287 (1942). The FC&C clause doesn't allow people's legal rights to fluctuate as they move from state to state. That was the point of the FC&C clause!

State A can't refuse to recognize a divorce in state B. Why, then, would anyone think that state A can refuse to recognize a marriage in state B?

Posted by: Ben Bateman at May 10, 2004 5:45 PM

Correction: I meant FF&C (full faith and credit) instead of FC&C. Maybe I've seen the acronym for Federal Communications Commission too many times.

Posted by: Ben Bateman at May 10, 2004 5:50 PM

And here's a second shot at the URL. Cut and paste it: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=287

Posted by: Ben Bateman at May 10, 2004 5:54 PM

State A can't refuse to recognize a divorce in state B. Why, then, would anyone think that state A can refuse to recognize a marriage in state B?

Before explaining why, let us note that states have refused to recognize sister state marriages. To quote from Deborah Henson's article on sister state recognition of same-sex marriage (U. of Louisville J. of Fam. Law, Summer '94), here are just a few examples

n52 See, e.g., In re Estate of Mortenson, 316 P.2d 1106 (Ariz. 1957) (holding that first cousins may not evade domiciliary statute by going out of state to marry); Catalano v. Catalano, 170 A.2d 726 (Conn. 1961)(finding uncle-niece marriage invalid); Meisenhelder v. Chicago & N.W. Ry., 213 N.W. 32 (Minn. 1927) (first cousins); Johnson v. Johnson, 106 P. 500 (Wash. 1910) (first cousins).

In fact, the Restatement (Second)of Conflict of Laws (1971) which is the basis of choice of law in about half the states notes that a marriage may be invalidated if it "violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage." So evasive same-sex marriages could be invalidated by that rule, and that would be completely consistant with Williams which noted:

Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal. Thus it is plain that each state by virtue of its command over its domiciliaries and its large interest in the institution of marriage can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent.

Not only does that imply that a state need not give recognition to a marriage of its own domiciliaries who evaded the state's law to marry, but it seems to imply that if a couple subsequently became domiciled in a state it could (as sovreign) alter their marital status so that they would no longer be married upon establishing domicile in that state. That could raise due process concerns, but not FF&C concerns. In fact, there are some cases involving interracial marriages where southern states refused to recognize a sister state marriage of an interracial couple who subsequently moved to their state. See State v. Bell 66 Tenn. 9 (1872). Also see the Federal case Ex parte Kinney 14 F. Cas. 602 (C.C.E.D. Va. 1879). That was an evasion case, but the court noted that the FF&C claim would be rejected even if it involved, "citizens of another state, lawfully married in tha domicile, afterward migrating thence in good faith into this state [Virginia]."

Now I don't doubt that FF&C would in all likelihood require State A to recognize the marriage of State B domiciliaries if they continue to reside in State B. This is even more likely to be the case if it was simply the matter of State A being asked to enforce the judgement of a court in State B. And that is the biggest difference between divorce and marriage. Divorce involves the judgement of a court and as the court in Williams repeatedly noted FF&C is required to be given to judgements of foreign courts. A divorce decree is a judgement, a marriage in itself is not.

And there's a reason judgments must be given full faith and credit. To not do so would allow forum shopping. A person who didn't like the judgement in one state could just pack up and go to another state and seek a new judgement that is more favorable. But whatever the reason, the Court in Williams noted that Congress did require judgements to be given full faith and credit. The Court also specifically said it expresses no view on whether Congress could make exceptions to this. So in that regards DOMA is still an open question when it allows even judgements that stem from same-sex marriage to be given no effect in sister states. As for the right not to recognize evasive marriages, though, even DOMA wasn't necessary.

Posted by: Gabriel Rosenberg at May 10, 2004 10:47 PM

Prof. Rosenberg,

Your examples from Henson all have to do with kin relationships, the history of which is significantly different, not the least in the longevity and establishment of precedence. Those investigating the effects of SSM have tended to turn toward miscegenation, for which the picture is, at least, more mixed, perhaps even tilting toward state-to-state recognition. At any rate, kissing-cousin marriage has never been an en vogue cause of our nation's elites.

Furthermore, "strong public policy" isn't as clear, in this debate, as one might suppose. I don't find it likely that states without DOMAs or amendments will be found to have "strong public policies" forbidding SSM. And I don't find it unlikely that judges will simply declare DOMAs and (if they're federal judges) amendments unconstitutional in the process of declaring there to be no "strong public policy."

Still further, I think you make some presumptions about what the passage in Williams that you quote "implies." Its context deals with whether one spouse can leverage powers and rights that the government already has (dissolving a legal marriage) even though "the other spouse is absent." That necessarily implies nothing about a state's ability to void marriage against the will of both spouses.

Posted by: Justin Katz at May 11, 2004 1:26 PM

Mr. Katz,

I agree with some of what you just said. As for recognition in miscegenation cases, the record is actually less mixed than in incestuous cases. For example, while there have been a few cases where a court chose to recognize an evasive incestuous marriage, Henson reports that Massachusetts is the only jurisdiction that ever honored an evasive interracial marriage (in an 1819 case that was subsequently rejected by statute even in Massachusetts). All other cases and legal commentaries have invalidated interracial evasion cases. Henson gives a footnote with some of those cases:

n73 See, e.g., Succession of Gabisso, 44 So. 438, 441 (La. 1907) (finding marriage of white man and woman with one-eighth Negro blood to be an absolute nullity "in contravention of public policy and good morals"); In re Takahashi's Estate, 129 P.2d 217 (Mont. 1942) (declaring marriage of white man and Japanese woman legally contracted out of the state to be legally nonexistent even for the purpose of surviving wife becoming administratrix of her husband's estate); Eggers v. Olson, 231 P. 483 (Okla. 1924) (holding that the marriage between Choctaw Indian woman and black man was void because the couple could not evade the laws of their home state and have that marriage recognized by Oklahoma when they returned there to live); In re Wilbur's Estate, 35 P. 407 (Wash. 1894) (holding that a valid marriage existed under Swinamish tribal law, but that due to the Territory of Washington's 1866 statute which prohibited Indians and caucasians from intermarrying, the marriage between them was void--even though the statute was repealed in 1868, shortly after they began cohabiting and finding that the man had committed a fraud upon the law of his domicile by marrying the Indian woman).

So I would not classify this as tilted towards state-to-state recognition. Now let me once again emphasize I am talking about evasion cases where a couple left a state where the marriage was permitted in order to marry, and then returned back to the said state. In cases where the couple never resided in the state, the marriages were generally (and I think always) given recognition. The mixed bag situation is where the couple were domiciled and legally wed in a state where the marriage was legal, and subsequently moved to a state where it was not. But even in those cases there was no indication that Full Faith and Credit would require that the marriage be recognized for all purposes.

I agree wholeheartedly that "strong public policy" isn't clear in this case. I certainly agree that a state without a DOMA is unlikely to be found to have a "strong public policy" against SSM. I think those states will and should recognize same-sex marriages performed elsewhere, but not because they are required to by FF&C. Rather there is a strong policy interest in recognizing marriages, and so the state chooses to recognize foreign marriages as a matter of comity and public policy. In this sense a Massachusetts marriage is no more likely to get recognition than an Ontario marriage. (In fact it is less likely because of Massachusetts' reverse-evasion law). Yes DOMA's could be struck down, but not likely under Full Faith and Credit. They are far more likley to be struck down under equal protection and due process. If a State has enough justification to prevent its domiciliaries from marrying within its borders, it almost certainly also has enough justification to refuse to recognize the marriage of the same couple who happened to be able to afford a plane ticket. In any case, Ben asked why anyone would believe FF&C would not require sister-state recognition and I'm giving the reasons.

Finally Williams specifically said, "Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders". To me that implies that the marital status of person domiciled within its borders is a rightful and legitimate concern of the state. It does not say it can void a marriage against the will of the parties, but that is actually already well established. Many marriages (bigamous, incestuous, underage, etc.) are declared by a state to be void ab initio regardless of the will of either spouse.

In any case, Ben asked why a divorce would need to be recongized under FF&C, but not a marriage. I gave three reasons (1) precedent, (2) the right of a state to control the marital status of its own domiciliaries, and (3) a divorce is a judgement, a marriage is not.

Posted by: Gabriel Rosenberg at May 11, 2004 2:32 PM

Gabriel,
No time for a long response, nor to read the cases you've cited.

You're missing a piece here, which is the emphasis on domicile. Yes, the state has lots of concern about its domiciliaries, but the FF&C clause says that people can freely change their domicile. That's the problem.

It takes a lot of reading to get the whole story in Williams. You can go back to the opinion in the original conviction, then read the case already cited, then go back to the NC Supreme Court, then go back to the US Sup Ct. Ultimately the US Sup Ct agree with the NC Sup Ct that the couple had not established domicile, and the bigamy conviction was upheld.

So the quote you pulled from the first US Sup Ct Williams opinion isn't as broad as it looks. It's phrased very precisely to be limited to the state's domiciliaries. That gives it almost the opposite meaning from what you want it to say. States can ONLY exercise that authority over their domiciliaries. As soon as someone establishes a domicile outside of that state, as the defendants did in Williams, then the state of their marriage is irrelevant. The US Sup Ct goes on to conclude that the FF&C clause overrides the state's interest in strict divorce laws. The core quote, as I see it, is here:
"It is objected, however, that if such divorce decrees must be given full faith and credit, a substantial dilution of the sovereignty of other states will be effected. For it is pointed out that under such a rule one state's policy of strict control over the institution of marriage could be thwarted by the decree of a more lax state. But such an objection goes to the application of the full faith and credit clause to many situations. It is an objection in varying degrees of intensity to the enforcement of a judgment of a sister state based on a cause of action which could not be enforced in the state of the forum. . . . Such is part of the price of our federal system."

As for the difference between a judgment and some other governmental act, I don't know of any area of law where that distinction has stood up. It certainly hasn't in the First Amendment: "Congress shall make no law" isn't restricted to literal acts of Congress. I'll try to think up some more examples for you, but I don't see that distinction being viable.

I don't have time to read all the cases you've cited, but at least one noted that the litigants were not domiciled in the court's state. So again, it sounds like we're just talking about a problem of domicile. And any case before Williams would be irrelevant, because I don't deny that we had patchwork marriage between Haddock and Williams. It would be interesting to find some details on how that system worked and the problems they encountered.

Posted by: Ben Bateman at May 11, 2004 5:00 PM

Yes domocile is key, and what establishes domicile is complicated. If it were up to me I would abolish the concept and truly unify into one country. That said, it is pretty clear that a couple who lives and works in Virginia, who then goes up to Massachusetts for a weekend to marry, and then returns to Virginia will not be considered to have established domicile in Massachusetts. That is why evasion cases seem to be the most clear cut.

As for the distinction between judgements and statutes a good opinion to read is Nevada v. Hall (1979). That case also notes that even with respect to judgements there are some limits on the extent to which FF&C is required, but even less so with respect to statutes. Now is a marraige more like a judgement or more like a statute?

One might consider looking to the rationale why judgements are given more effect as regards to FF&C. Most directly it is because Congress requires it and the Constitution says Congress may deem how FF&C works. So does Congress required FF&C to be extended to marriages? No. And in fact with regards to SSM it explicitly said no. Even without DOMA, though, one could look at the underlying reason for FF&C to be extended to judgements. It is to avoid being able to escape the judgement of the court of one state by fleeing to another. In much the same way that extradition between states is constitutionally required, FF&C of judgements prevents one state from being a sanctuary for those fleeing justice of another state.

Now I think DOMA has a number of constitutional problems, but I don't think FF&C is one of them (except perhaps in so far as it allows State A to ignore judgements from State B which depended on the marriage of State B domiciliaries. That is consider a couple who live in Massachusetts their whole lives. They marry and continue to live there. One dies and the widow obtains a judgement in a wrongful death suit. I think FF&C might require other states to enforce that judgement despite DOMA saying they don't have to do so.)

Posted by: Gabriel Rosenberg at May 11, 2004 5:30 PM

Prof. Rosenberg,

I made the mistake, earlier, of trying to respond too quickly. Herewith partially amended.

Firstly, I wish to note that you introduced "evasive" cases. The distinction about whether a couple can fly out of state for a marriage and then fly back or has to at least give the impression of sincere migration is of little concern to me.

Even so, I don't believe the precedent for evasive marriages for interracial couples is as clear-cut as you suggest. In your first comment above, you introduced State v. Bell, which according to Andrew Koppelman (Quinnipiac Law Review, 1997) is one of "two cases in which this result [that Southern states would have to tolerate some interracial cohabitation within their borders] was threatened." Koppelman is writing in the context of whether states should or could judge whether the intent of couples was to evade the law. The other case, State v. Ross, went the other way, finding, according to Koppelman:

Because of the strong interest in uniformity, marriages not deemed odious to all had to be given extraterritorial recognition by all. Because the civilized world was not united in rejecting interracial marriages, North Carolina had a duty to join the rest of civilization in enforcing the common rule. "The law of nations is a part of the law of North Carolina. We are under obligations of comity to our sister States."

I can't find much on Kinney, so I won't comment on it. I also don't know much about the other cases that you cite, although I note that Gabisso, for one, appears more to involve a question of divorce and remarriage. Others, such as Takahashi's Estate and Eggers v. Olson have to do with estates, so they would seem closer to the divorce precedent.

But again, we on opposite sides of this issue are arguing past each other. I don't believe federal imposition of same-sex marriage on a particular state is the only objectionable outcome; I also object to the notion that a state judiciary is sufficient to opt for SSM on behalf of its state. These discussions get to the point that the bottom line becomes that judges can rule however they want. For example, in your first response to me, you refer (without name) to Medway in Massachusetts, which is already in the arsenal of SSM advocates.

At any rate, I'll have to give further thought to its significance, but I find it bitterly delicious that you've come to this question: "is a marriage more like a judgment or more like a statute?" Goodridge, obviously, was a judgment.

Posted by: Justin Katz at May 11, 2004 9:03 PM

The distinction of evasive marriages is important to some people so I thought it worth mentioning. One of the criticisms raised about Massachusetts marriage is that people will flock to Massachusetts, marry, and then return home demanding to have their marriage recognized. I think it is worth noting that in that case, there is no need for the state to recognize the marriae. It might choose to do so anyway for a variety of reasons, but it is certainly not required by FF&C. Note that even Medway did not rely on FF&C, but rather the state's interest in recognizing foreign marriages. Even with the sincere migration case there is no indication that they would be requied to recognize it by FF&C, as Ross made no mention of it.

In fact, for the most part, the line of reasoning in cases where the marriage was recognized had little to do with the fact that the marriage occurred in another state of the union as opposed to a foreign country. (Ross mentioned that the general rule applied to the whole "civilized and Christian world", so at the very least it should apply throughout the United States.) So for the most part these issues were going to be raised by Canadian marriages even if Massachusetts hadn't legalized SSM. In fact GLAD points out that non-Mass residents are far better off getting married in Canada, because the general rule of recognizing a marriage that is valid where celebrated applies just as well to Canadian marriages, but may not in fact apply to Massachusetts marriages because of the 1913 law.

Kinney was a case very similar to Loving in that an interracial couple fled Virginia, to marry in DC, and then returned to Virginia and were convicted of interracial cohabitation. Kinney argued that his DC marriage should be valid everywhere. The court said it wasn't because he had evaded the laws of Virginia. It noted that even in the case of sincere migration Virginia would not need to recognize it, but in the case of non-Virginia domiciliaries just travelling through the State, Virginia would not be able to stop them. Note also that Loving was also not decided on FF&C grounds, but rather equal protection and due process grounds.

Gabisso concerned both remarriage after divorce and interracial marriage. A white man was sued for divorce on the grounds of adultery in Louisiana. He subsequently married the paramour in Mississippi. The paramour apparently had 1/8 negro blood, and there was a question whether the law of Mississippi at the time applied only to 1/4 blood or 1/8 blood. So there were a lot of issues involved, but basically the court said no mattter how you looked at it the marriage was invalid. In support of this it cited the following:

The rule that a marriage, valid where celebrated, is valid everywhere, is subject to the exception that foreign marriages, though valid where celebrated, will not be recognized as valid if they are: First, polygamous; second, incestuous; or, third, in other respects obnoxious to the laws and the public policy of the country where such marriages are assailed." A. & E. Enc. of Law, vol. 19, pp. 1211, 1212.

"Another exception to the rule -- that the lex loci governs the validity of marriages -- is that marriages in evasion of the laws of the domicile will not be recognized as valid." Id. p. 1213.

I don't see why cases dealing with estates fall more in line with the divorce precedent.

It is not the case that at the bottom line judges can rule as they wish. If that were so then what good is a constitutional amendment. Judges will ignore it and rule as they wish. Judges are bound first by past precedent in their own jurisdiction. Precedents from other jurisdictions can be persuasive, but not authoritative. That is a judge might agree with particular line of reasoning used elsewhere. The highest court can occasionaly overturn prior rulings, but they are generally very reluctant to do so. That is common law, but statutes supercede common law. State constitutions trump statutes, and the federal constitution trumps both.

I can understand your concern that a state judiciary might require same-sex marriage. I think it's a perfectly legitimate concern. Hawaii and Massachusetts have done so. I would not be surprised if Oregon and New Jersey follow suit. Goodridge will have only a little effect on whether they decide to do so. (The court may be persuaded by the reasoning in Goodridge) In this particular thread, though, Mr. Bateman asked why anyone would believe that FF&C would not require recogntion of sister-state same-sex marriages. I have tried my best to explain why I believed that it would not, and why in fact there were many reasons to believe it would not (at least as it pertains to their own domiciliaries). That is the point I'm focusing on in this thread.

Yes, Goodridge was a judgement, but the marriages themselves are often thought in the law as more like contracts. With contracts, like marriages, the general rule is to follow the law of the place where the contract was signed. Like marriages, though, there is a public policy exception and a state can choose to apply its own laws instead. The Supreme Court has ruled (see the Nevada case above) that a state is free to set its own rules for determining which set of laws to apply to the dispute. Of course the judgement in Goodridge must be given FF&C everywhere, but I can't imagine a case where this would come up as the judgement was entirely one of declatory relief. It's not like someone needs ot go to another state to try to collect on the judgement.

Posted by: Gabriel Rosenberg at May 11, 2004 10:38 PM