The Continuing Relevance of the Full Faith and Credit Clause: The Life of the Same-Sex Marriage after Windsor and Beshear

AuthorSteven Specht
PositionFlorida State University College of Law
Pages423-458
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2015 e Institute for Migrant Rights Press
423
Note. Special thanks to Professor Garrick Pursley, Citizen Robert Atkinson, and classmate
Melanie Kalmanson.
THE CONTINUING RELEVANCE OF THE FULL FAITH
AND CREDIT CLAUSE
THE LIFE OF THE SAME-SEX MARRIAGE AFTER WINDSOR AND
BESHEAR
STEVEN K. SPECHT
Florida State University College of Law
E-mail: sks13d@my.fsu.edu
In United States v. Windsor, the Supreme Court considered Section 3 of the
Defense of Marriage Act (DOMA) and it carefully avoided consideration
of Section 2. By doing so, the Court allowed states to continue ignoring the
Full Faith and Credit Clause of the U.S. Constitution as applied to same-sex
marriage. ough the Supreme Court has granted certiorari for four cases
arriving from the Sixth Circuit under the case name Bourke v. Beshear, the
Roberts Court will likely apply its consistent minimalist approach. is means
it will not consider issues related to the Full Faith and Credit Clause and will
likely only consider the pleadings arguing for Due Process and Equal Protection
guarantees of the Fourteenth Amendment that are broad enough to encompass
a right to same-sex marriage and interstate recognition of same-sex marriage.
Regardless of the ruling in Bourke v. Beshear, the issue of Full Faith and Credit
and Section 2 of DOMA remains relevant. If the Court nds for the same-sex
couples on the rights in the Fourteenth Amendment, states can still make a
colorable argument to refuse recognition of same-sex marriages based on Section
2, despite the ruling in Bourke v. Beshear which may substantively overrule
the statute but functionally leave it in place. Alternatively, if the Court nds in
favor of the state governments in Bourke v. Beshear, then a concerted eort by
same-sex couples for relief under the Full Faith and Credit Clause may be the
The Indonesian Journal of International & Comparative Law Volume II Issue 2 (2015) at 423–58
Steven Specht
424
only remaining course of action.
Keywords: Same-sex Marriage, Constitutional Law, Due Process of Law, Equality
before the Law, Family Law, Human Rights.
I. INTRODUCTION
When Congress enacted the Defense of Marriage Act (hereinafter
DOMA)1 in 1996, the goal was two-fold. First, it protected states from
the possibility of being forced to recognize same-sex marriages2 via appli-
cation of the Full Faith and Credit Clause of the United States Constitu-
tion.3 Second, it dened “marriage” as one man and one woman for the
purposes of federal law.4 Seventeen years after being passed, Section 3 was
struck down in United States v. Windsor,5 as an unconstitutional depriva-
tion of liberty protected by the Fifth Amendment’s Due Process Clause
which prohibits denying any person the equal protection of laws.6
e Court took a minimalist approach to the law and left Section 2
in place, mentioning it only once for the purpose of stating that it was
not being challenged.7 Such a law allowing states to waive the Full Faith
1. Pub. L. No. 104–199, 110 Stat. 2419, 1 U.S.C.A. § 7 (1996), invalidated by
United States v. Windsor, 133 S. Ct. 2675 (2013) & 28 U.S.C. § 1738C (1996).
2. For the purposes of this Paper, marriages between two people of the same gender
will be identied herein as “same-sex marriages,” unless they are referred to as
homosexual marriages by in a quote. Marriages between two people of opposite
gender will be identied herein as “heterosexual marriages.” Marriage as a generic
term is in reference to statutes and case law.
3. U.S. C. art. IV, § 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 Eect thereof.”).
4. Defense of Marriage Act, 1 U.S.C.A. § 7 (1996), invalidated by Windsor, 133 S.
Ct. 2675.
5. 133 S. Ct. 2675.
6. U.S. C. amend. V.
7. United States v. Windsor, 133 S. Ct. 2675, 2682 (2013).
Steven Specht
The Continuing Relevance of the Full Faith and Credit Clause: The Life of the Same-Sex Marriage after Windsor and Beshear
425
and Credit Clause is unprecedented in the legal history of the United
States, and on shaky constitutional ground considering longstanding
use of Congressional power in “prescribing” manners in which states
may apply Full Faith and Credit.8 e constitutionality of Section 2 is
an open-ended question which begs an answer. May Congress carve out
limitations to the Full Faith and Credit Clause that allow states to ignore
actions taken by other states?
e Full Faith and Credit Clause states “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 eect thereof.”9 Congress has rarely used its power to make general laws
relating to the Full Faith and Credit Clause; rather than merely clarifying
how states should apply the Full Faith and Credit Clause, DOMA is the
rst instance where Congress allows a states to ignore allowing a state to
ignore the Full Faith and Credit Clause.10
Despite a history and tradition of recognizing an interstate quality
to marriage,11 for nearly two decades, DOMA has allowed the states to
ignore Article IV of the Constitution which mandates that states must give
full faith and credit to the public acts, records, and judicial proceedings
of every other state.12 With the sole exception of DOMA, in 224 years
of clarifying the Full Faith and Credit Clause, Congress has chosen to be
bound by a reading of its power to prescribe as a power to clarify rather
than a power to create state proscriptions. e creation of a proscription
of full faith and credit in Section 2 of DOMA is unprecedented and
unduplicated.13 Rather than “ensure a measure of unity for the United
8. U.S. C. art. IV, § 1
9. U.S. C. art. IV, § 1.
10. e Full Faith and Credit Clause has been invoked in statute approximately nine
times by Congress. See discussion infra Part III.A, at 440-44; see also infra note
136.
11. See generally Yarborough v. Yarborough, 290 U.S. 202, 218 (1933) (Holding
that there is an interest which every state has to maintain the stability of a union
entered into according to the laws of the place of celebration.)
12. U.S. C. art. IV, § 1.
13. Wolfson & Meicher, supra note 136, at 17.

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