Download this Paper Open PDF in Browser

The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate

12 Pages Posted: 7 May 2006  

Patrick Joseph Borchers

Creighton University School of Law

Abstract

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

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

Patrick Borchers (Contact Author)

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402-280-3009 (Phone)
402-280-3161 (Fax)

HOME PAGE: http://culaw2.creighton.edu

Paper statistics

Downloads
425
Rank
57,284
Abstract Views
4,500