<<  <  >  >>

their new states, they will become embroiled in

However, the FFCC has never been inter-

contract, property, tort, and custody disputes

preted to mean that every state must recognize

that will have to be addressed in their new

every marriage performed in every other

state.30 It is true that, under the place-of-cele-

state's (and in federal) courts. Those courts

will reach varying results, with some recogniz-

bration rule, states usually recognize the valid-

ing and others not recognizing the "civil

ity of marriages performed in other states. But

union" or "domestic partnership." The upshot

each state also reserves the right to refuse to

will be the same sort of "confusion and chaos"

recognize a marriage performed in another

that supporters of the FMA claim to fear from

state--or performed in a foreign country, such

divergent state marriage policies.24 This sort of

as Canada--if that marriage would violate the

state's public policy.31 Under this public policy

confusion and chaos, however, has for more

than two centuries operated under a more

exception to the general rule of recognition,

kindly description: federalism.

states will generally overlook small or techni-

cal differences in the marriage laws of other

Federal Constitutional Doctrines

states. For example, the fact that a marriage

was witnessed by only two people (as required

in a sister state), instead of three (as required in

The Full Faith and Credit Clause

Supporters of the FMA argue that if a state

the home state) would not usually prevent

court imposes same-sex marriage on a state,

recognition of a marriage validly performed in

then courts in other states or federal courts

the sister state.

might require states in their jurisdictions to rec-

But under the public policy exception, states

ognize such marriages under the Constitution's

do not ordinarily overlook major differences in

Full Faith and Credit Clause (FFCC) of Art. IV,

the marriage laws of foreign jurisdictions. For

Sec. 1.25 This fear is hypothetical and exaggerat-

example, under longstanding principles, states

are not required to recognize a marriage they

ed. As a nation, we have addressed this issue. In

deem incestuous, even if that marriage was

1996, in reaction to litigation for same-sex mar-

valid in the state where it was performed.32 The

riage in Hawaii, Congress passed, and President

Bill Clinton signed, the Defense of Marriage

Supreme Court has never suggested that this

Act. DOMA defines marriage as the union of

practice is invalid under the FFCC.

one man and one woman for purposes of fed-

Forty-five states have already declared by

eral law, such as entitlement to Social Security

statute or state constitution, or both, that it is

benefits and federal taxation.26 DOMA also

their public policy not to recognize same-sex

marriages.33 Even in the four states without

provides that states may refuse to recognize

same-sex marriages performed elsewhere.27 A

gay marriage, state policy may be adequately

declared on the issue to allow those states to

state court decision recognizing same-sex mar-

refuse to recognize same-sex marriages from a

riages in a given state does not by itself make

foreign jurisdiction. In that sense, DOMA and

DOMA invalid. No federal or state court has

the 45 "little DOMAs" passed by the states are

held DOMA unconstitutional; so far, in the

No federal or

probably redundant, a form of added insur-

aftermath of Goodridge, the only federal courts

to examine the matter have upheld DOMA.28

ance against the recognition of same-sex mar-

state court has

riage by activist judges. Even former Repub-

Let's examine the particulars of the FFCC

held DOMA

lican congressman Bob Barr, who opposes

fear. Supporters of a constitutional amend-

same-sex marriage and was the main author of

ment warn that Adam and Steve, or Sue and

unconstitutional;

DOMA, has argued that DOMA is more than

Ellen, will go to a state that has just recognized

the only federal

adequate to prevent the imposition of nation-

same-sex marriages, get married there, and

wide same-sex marriage.34

courts to examine

then return to their home state demanding

recognition of their union under the FFCC. By

Under the traditional understanding of the

the matter have

this method, supporters conjecture, gay mar-

FFCC and choice-of-law principles, then, it is

upheld DOMA.

riage would gradually sweep the nation.29

doubtful that state or federal courts would

7