The Full Faith and Credit Clause and Same Sex Marriage: Why Aren’t States Required to Recognize Out of State Marriages?

So why aren’t states required to recognize marriages performed in other states?

Article 4, Section 1 of the United States Constitution reads:

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.

This is commonly referred to as Full Faith and Credit Clause, and, in short, requires states to enforce other states’ laws.  Many have wondered why the Full Faith and Credit Clause does not apply to same sex marriages, and some argue that it should.

Many more states than not do not recognize same sex marriage.  This means that the marriage of a same sex couple legally wed in Connecticut may not be recognized if they travel or move to a state that does not have marriage equality.

The impact of this can be very legally significant for same sex married couples.  Noah Feldman described, “an individual [who is] married in the eyes of New York, married in the eyes of the federal government, but living in a state like Ohio, which does not recognize her marriage as valid.  This woman couldn’t divorce her wife and couldn’t visit her in the hospital, but could even marry a man, thus becoming a bigamist in the eyes of the United States of America, yet duly married in Ohio. And New York.”

Unfortunately, the Windsor decision in which the United States Supreme Court found section 3 of DOMA unconstitutional does not change the clause’s inapplicability to marriages.  A remaining section of DOMA states that that each state can set its marriage rules for itself, and that no state has to recognize another state’s marriages that offend the first state’s public policy.  These concepts, though codified in DOMA, are really a reiteration of long standing legal principles.  States are able to set their own rules about who can marry, without obligation to recognize each other’s marriages.  (Thanks to Loving v. Virginia, this is no longer true for interracial marriages, but remains true for underage marriages and marriages between cousins.)

Traditionally, Jay Michaelson writes, the Full Faith and Credit Clause:

has never been applied to marriages.  You can marry your cousin in some states, but other states don’t have to recognize the marriage.  You can marry a 17-year-old in some states, but other states don’t have to recognize that marriage either.

As an aside, as Kristen Marcroft discussed here previously, adoptions are court orders, which, all states are required to recognize under the Full Faith and Credit Clause.  As a result, an adoption by an “LGBT parent should be recognized in every state, even if that state’s own laws would not have allowed the adoption to take place.”