12 Pages Posted: 7 May 2006
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.
Keywords: full faith and credit, same-sex marriage, conflict of laws
JEL Classification: k10, k33, k39
Suggested Citation: Suggested Citation
Borchers, Patrick Joseph, The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate. Creighton Law Review, Vol. 38, p. 353, 2005 . Available at SSRN: https://ssrn.com/abstract=899385