The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate
Patrick Joseph Borchers
Creighton University School of Law
Creighton Law Review, Vol. 38, p. 353, 2005
Although the Full Faith and Credit Clause is often assumed by the popular press and some legal commentators to impose a mandatory duty on states to recognize same-sex marriages validly celebrated in another state, this common assumption is clearly false. States have always retained the power to refuse to recognize some out-of-state marriages that violate their expressions of public policy. This has happened with, for example, marriages involving underage spouses or marriages that violate a state's consanguinity rules. Marriages do not stand on the same constitutional footing as litigated judgments. As a result, whether a state chooses to recognize a same-sex marriage celebrated in another state is a function of the recognizing state's law and its conflict-of-laws principles and not a matter of constitutional compulsion.
Number of Pages in PDF File: 12
Keywords: full faith and credit, same-sex marriage, conflict of laws
JEL Classification: k10, k33, k39Accepted Paper Series
Date posted: May 7, 2006
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