69 HASTINGS L.J. 721 (2018)
50 Pages Posted: 2 Jun 2017 Last revised: 13 Apr 2018
Date Written: June 2, 2017
We live in a moment of intense preoccupation with both marriage and federalism, one that is likely to persist well beyond the Supreme Court’s ruling in Obergefell v. Hodges. The decision served to reify marriage as a site of enormous cultural significance, an appropriate institution within which to fight over social meaning and its reflection in law. These battles are fought state by state, against a backdrop of unprecedented geographic mobility, raising profound questions not only about how states relate to their own citizens but how states relate to each other. Because if it is true that states have an interest in marriages they have created, an idea often invoked but less frequently examined, then interstate marriage recognition is a matter not only of individual rights but also of state sovereignty. And yet the Full Faith and Credit Clause, the constitutional command that is seemingly most suited to managing marriage federalism, has never been called into action.
This Article first suggests that this warrants explanation, and then endeavors to provide one. It offers an account of contingent doctrinal evolution, demonstrating that the work the Clause might do in regulating interstate marriage recognition has so far been done by other doctrines. But it also explains why the Clause might nonetheless be useful for the marriage controversies of the future. The anti-animus principles that drove forward marriage equality are highly dynamic; they reflect and respond to social change in an iterative process that is neither linear, nor predictable, nor instantaneous. While this unfolds for any given marriage controversy, over a period that might take decades, we would advance our commitment to faithful unions – both marital and national – by developing an interstate recognition scheme with constitutional parameters.
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