LEGAL QUERY

Andrew Sullivan makes a claim that contradicts something I’ve posted on occasionally:

Despite disingenuous attempts to claim otherwise, the Full Faith and Credit Clause has never applied to marriages and still doesn’t.

Do any of you know the case law on this one? While I’ve studied–and even taught–Constitutional law, the Full Faith and Credit Clause is sufficiently obscure that it’s usually omitted from even two-semester undergraduate sequences.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Steven says:

    This contradicts my understanding as well. I recall reading a journal article on this a while back. I will see if I can find it. My reaction is that Sully is wrong, but have nothing off the tip of my brain to prove it.

  2. James Joyner says:

    OK. Those famous Las Vegas quickie marriages and divorces would seem to be anecdotal evidence, if nothing else.

  3. Kevin Drum says:

    Yeah, I was thinking about Las Vegas too.

    Also, isn’t it illegal in some states for first cousins to marry but not in others? But don’t all states recognize first cousin marriages as long as they were legally performed?

    Then again, surely Google can help. First this:

    “A note: the states (in the USA) which currently prohibit first cousin marriage are: AZ, AR, DE, ID, IL, IN, IA, KS, KY, LA, ME, MI, MN, MS, MO, MT, NE, NV, NH, ND, OH, OK, OR, PA, SD, UT, WA, WV, WI, AND WY….One more note: In January of 1887 my great-great grandmother, Mary Elizabeth Sheets Herman, and her first cousin and beau, William H. Miller, both of Philadelphia, PA, took a ferry across the Delaware River to the city of Camden, NJ, in which state they could legally become married. They returned to Philadelphia where they lived, worked, and raised five children, besides Mary’s two children still living from her first marriage. That marriage was recognized as legal in PA, even if it was not legal to become so married in that state. They and their children lived well.”

    On the other hand, Kentucky specifically doesn’t recognize cousin marriages even if performed in another state. My guess is that this is never enforced (how would you know?), but it’s still the law.

  4. Alex Knapp says:

    Marriage is, specifically, one of the things that the full faith and credit clause was intended to address, according to the debates in the Constitutional Convention.

  5. Matthew says:

    I think Andrew’s being too clever by half.

  6. pathos says:

    Andrew is wrong in the general sense, but right in the gay-marriage specific. Read the whole “full faith and credit” section.

    “Section 1. 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.”

    So Congress can — by appropriate legislation — decide that one a particular topic a state need not give any “effect” to a marriage performed in another state.

    The Defense of Marriage Act did that. A properly enacted Defense of Consanguinity Act could do the same for first cousins, but that law hasn’t passed yet.

    It should really be called the “full faith and credit absent Congressional intervention” clause.

  7. James Joyner says:

    pathos,

    I noted the second clause in my original post, but the plain language often doesn’t mean much in terms of how it will be interpreted. If that were the case, states would still control abortion and, indeed, Marbury v. Madison would never have happened.