Full Faith and Credit
Let’s face it. Article IV of the Constitution isn’t very sexy. I mean, after the three branches of government are set up in Articles I (Legislative), II (Executive), and III (Judicial), what is left to be done?
Article V does some of the heavy lifting – it explains how the Constitution is to be amended. The people who wrote the Constitution expected it to be amended – they were not at all certain that they had gotten everything right.
Article VI says that the federal constitution and laws will be “superior” to state constitutions and laws. A little vague, and unclear how it would work in action, but we get the idea.
Article VII, in 24 words, explains how many states it will take to ratify the Constitution – nine of 13.
But Article IV contains some juicy morsels, so I want to write about it here. For any regular readers, this is another topic where a whole bunch of other people know a lot more than I do. But I know enough to make some sense, I think.
By the way – if you want to dive into the 200 years of jurisprudence on Constitutional interpretation, have at it. Here’s a good starting point. https://constitution.congress.gov/browse/
Privileges and Immunities Clause
This doesn’t really cause a lot of difficulties. It says that a state can’t have different laws for people who live in the state versus people just visiting or traveling through the state. States can’t have different speed limits or tax rates based on where someone lives. This clause does contain the wiggle word “unreasonable,” which suggests that there may be “reasonable” distinctions that a state can make between its residents and residents of other states, although it’s hard to think of any. Note: people are “residents,” not “citizens” of their respective states. All state residents are citizens of the United States and have rights because of that. Fundamental rights are determined by citizenship status, not residency. That’s a distinction we need to keep in mind as we talk about powers and rights at various levels of government.
Full Faith and Credit Clause
This is the clause that has caused problems over the years. When I taught high school American Government, I used to use concrete examples to explain this point.
You are considered a high school graduate even if you move from a state with lower graduation standards to a state with higher graduation standards. The higher-standards state must recognize the validity of your diploma. That doesn’t mean you’ll get into that state’s university, but it means that you’ll meet any requirement by potential employers (and the army for example) that new hires have a high school diploma.
If you got your driver’s license in a state that allowed you to get the license at age 15 1/2, you can drive legally in a state that doesn’t allow people to get licenses until they are 16. Say your family’s on a trip and your Dad lets you drive to get some practice. If a state trooper stops you for speeding you won’t get a “driving without a permit” citation, although you may still get a speeding ticket. And your Dad may not let you get behind the wheel again until you’re 30, but that’s up to him, not the state.
If you fly to Reno to get married or divorced, your state has to recognize the validity of your marriage or divorce when you get back home. This is why people fly to Reno to get married or divorced.
In case you’re wondering, I’m writing about the “Full Faith and Credit Clause” because of the re-emergence of the issue of same-sex marriage in the wake of the Dobbs Supreme Court opinion (the one on abortion) from a few weeks ago. This case and general discussions of whether individual rights should be protected at the state versus the federal level raise, once again, the issue of the separation between state and federal powers in the Constitution.
Let’s talk a little about this.
At the most basic level, the powers of the federal government are listed in Article I, Section 8. However, the last clause of this section – Clause 18 – says that Congress shall have the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This is often called the “necessary and proper” clause, or the “elastic clause,” because it stretches the meaning of the words of the Constitution. This does logical things like allow Congress to establish and pay for the Air Force even though there were no airplanes in 1787, or regulate the internet as “commerce,” even though there was no internet in 1787.
So how far does the elastic clause stretch? Well, the 10th Amendment provides some counterweight when it says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So what about something that is not listed in Article I, Section 8? Does the power belong to Congress (the federal government) because of Clause 18 of Article I Section, or does it belong to the states because of the Tenth Amendment?
That’s why we have federal courts, my friends.
Then you have to factor in the 14th amendment, which establishes a national definition of the rights of citizens when it says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Couple that with Article VI of the Constitution, the “Supremacy Clause,” which declares federal law superior to state law, and you seem to have a system where the feds get to decide a lot of important stuff.
I could go on and on (and on and on and on) but I want to get back to my main question. Suppose a state follows the lead of people like Bret Kavanaugh (and other originalists on the Supreme Court) and rules in some not-so-distant-future case that power over the right to same-sex marriage (or interracial marriage) belongs to the states, not the federal government. What happens when a same-sex couple, legally married in California, moves to a state like Texas where (presumably) same-sex marriage would not be legal? The Full Faith and Credit Clause says that a marriage that is legal in California must be recognized by other states. Does this mean that Texas has to provide the benefits of marriage (joint bank accounts, simpler inheritance laws, child custody arrangements, insurance coverage, retirement benefits, mortgages, and so forth) to same-sex couples who were married out of state, but can deny them to same-sex couples who are also denied the right to marry in Texas? In what world does that make sense?
In the 1990s (after Hawaii accorded some rights to same-sex couples), this question gave rise to the Defense of Marriage Act (DOMA), which carved out an exception to the Full Faith and Credit Clause in this language:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe, respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession or tribe, or a right or claim arising from such relationship.
The Clinton administration did not oppose this legislation, in part because it saw DOMA as a way to fend off a possible constitutional amendment that would contain a restrictive definition of marriage as “between one man and one woman.”
The language in italics above was struck down in the 2013 Windsor case, followed by the broader 2015 decision in Obergefell v. Hodges. The opinion in this case basically said yeah, you can’t just strike down the Full Faith and Credit Clause because you don’t like what it does in this situation. This opinion, written by retired Justice Anthony Kennedy, is particularly important because its detailed discussion of the Full Faith and Credit Clause. The justices in the majority of this 5-4 opinion were predictable: Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Since 2015, three of these justices – Kennedy, Ginsburg, and Breyer – have either died or left the Court. Of the four dissenting justices – Roberts, Scalia, Thomas, and Alito – three are still on the court, and their numbers have been bolstered by three justices – Gorsuch, Kavanaugh, and Barret – whose judicial history suggests they would also oppose the constitutional validation of same-sex marriage. The newest justice, Ketanji Brown Jackson, bolsters up the side espoused in Obergefell but does not resurrect the Obergefell majority.
Phew.
Here’s the deal. In our system, states are bound by the federal government as well as by the laws passed by other states. That’s how the framers of our Constitution structured a government that they hoped would hold together. Any future case about same-sex marriage (or other rights that fall into the gray areas of this vague and contradictory Constitutional language) is fundamentally about the Full Faith and Credit Clause. Any decision in such a case has implications for other rights protected under this clause. This is why legal commentators go batshit when opinions like Dobbs are announced.
As is often the case, the political cartoonists get it right.