Replies

He does not believe that one state should be able to impose its marriage laws on other states,

Doesn't the full faith & credit clause do just that - a coupled married in one state is considered married in all the other states, right?

Doesn't the full faith & credit clause do just that - a coupled married in one state is considered married in all the other states, right?

A Constitutional amendment that specifically mentioned marriage would take precedence over the FF&C clause for that act only. It would get tricky if you were trying to enforce a property settlement, child custody, or support agreement across state lines, if it emerged from a divorce of same-sex partners, however.

In any case, such an amendment has about as much chance of passing as does an amendment that would prohibit same-sex marriage. You need three-quarters of the state legislatures to ratify an amendment, and there will always be at least thirteen "blue" states that would keep either one from becoming part of the Constitution.

Doesn't the full faith & credit clause do just that - a coupled married in one state is considered married in all the other states, right?

Not necessarily. The Supreme Court and other federal courts have long held a "public policy exemption" to the full faith and credit clause. That is to say that a state is not bound by the clause to honor "public acts, records, and judicial proceedings" that are contrary to its own express public policy. In 1939, the Supreme Court held in Pacific Employers Insurance Co. v. Industrial Accident Comm'n (306 US 493):

The full faith and credit clause does not require a State to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another State, even though that statute is of controlling force in the courts of the State of its enactment with respect to the same persons and events, -- at least in the absence of action by Congress prescribing the extra-state effect to be given state statutes.

The case law on the specific issue of marriage isn't quite clear, but there is plenty of precedent to argue that a state isn't bound to honor a marriage that would be illegal in that state just because it was made in another state.