Is the Full Faith and Credit Clause Still 'Irrelevant' to Same-Sex Marriage?: Toward a Reconsideration of the Conventional Wisdom

Abstract

There exists an entrenched conventional wisdom that the Full Faith and Credit Clause is irrelevant to the question of whether one state must recognize another state's marriage. Marriage, according to this conventional wisdom, is simply another subject for ordinary lawmaking -- no different from things like workers' compensation, insurance regulation, gas royalties, or fishing licenses -- where each state gets to decide policy for itself. According to this view, marriage is nothing really special. States can apply each other's laws as a matter of comity if they choose, but nothing in the Constitution forces them to do so. The Court has never actually spoken to the question.

In this Essay, I urge a reconsideration of the conventional wisdom. For more than a century, and continuing through last summer's landmark same-sex marriage decision in United States v. Windsor, the Supreme Court has characterized marriage as something “sacred,” “the most important relation in life,” “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” a “status of immense import,” and something essential to an individual's “personhood and dignity.” If marriage is indeed as special, even unique, in our legal tradition as the Supreme Court says it is, then it is reasonable to argue that once a state has created a marriage, other states should be bound to recognize and respect it.

Keywords: full faith and credit, marriage, gay marriage, same-sex marriage, federalism, United States v. Windsor