Full Faith and Credit Clause

Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the "public acts, records, and judicial rulings" of other states. According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments. Judgments are generally entitled to greater respect than laws, in other states. [See Robert Jackson, Full Faith and Credit: The Lawyer's Clause of the Constitution (1945). Originally 45 Colum. L. Rev. 1. Available at http://www.roberthjackson.org/documents/120744/.] At present, it is widely agreed that this Clause of the Constitution has little impact on a court's choice of law decision, [See "Allstate v. Hague" 449 U.S. 302 (1981)(Plurality and deciding separate concurrence agreeing that full faith and credit and due process require only minimal scrutiny for state court choice of law decision); Robert A. Sedler, Constitutional Limitations on Choice of Law: The Perspective of Constitutional Generalism, 10 Hofstra L. Rev. 59 (1981); Willis L.M. Reese, The Hague Case: An Opportunity Lost, 10 Hofstra L. Rev. 195 (1981); Linda J. Silberman, Can the State of Minnesota Bind the Nation? Federal Choice of Law Constraints After Allstate Insurance Co. v. Hague, 10 Hofstra L. Rev. 103 (1983)] although this Clause of the Constitution was once interpreted differently. ["Alaska Packers v. Industrial Accident Commission", 294 U.S. 532 (1935) (holding that full faith and credit may require application of law of the state with the greatest interest in the case); See Reese, Legislative Jurisdiction, 78 Colum. L. Rev. 1587 (1978).]

Text

History prior to ratification of the Constitution

A similar clause existed in Article IV of the Articles of Confederation, the predecessor to the U.S. Constitution: "Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State." [ [http://www.law.ou.edu/ushistory/artconf.shtml Articles of Confederation] (1777).] A Pennsylvania court explained in 1786 that this provision in the Articles of Confederation did not direct that "executions might issue in one state upon the judgments given in another", but rather was "chiefly intended to oblige each state to receive the records of another as full evidence of such acts and judicial proceedings." ["James v. Allen", [http://press-pubs.uchicago.edu/founders/documents/a4_1s2.html 1 Dall. (1 U.S.) 188, 191-92] (Pa. 1786).]

At the Philadelphia Convention, James Madison said that he wanted to supplement that provision in the Articles of Confederation, in order to let Congress "provide for the execution of Judgments in other States, under such regulations as might be expedient." [ [http://press-pubs.uchicago.edu/founders/documents/a4_1s4.html Records of the Federal Convention] , "The Founders Constitution".] By 1787-09-01, negotiations at the Constitutional Convention had led to the following draft which included supplementary language as Madison had requested:

Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another. [ [http://books.google.com/books?id=oJnWZMHtDbAC&pg=RA1-PA504&lpg=RA1-PA504&dq=%22authorize+the+general+legislature+to+declare+the+effect%22&source=web&ots=hu_NrspTJW&sig=SofDkTCC5nmpzeMxOZfW_aS2GPU#PRA1-PA504,M1 Debates on the Adoption of the Federal Constitution] .]

After several further modifications, the Full Faith and Credit Clause assumed the form in which it remains today. During the ratification process, James Madison remarked further on this subject, in "Federalist #42". He wrote that the corresponding clause in the Articles of Confederation was "extremely indeterminate, and can be of little importance under any interpretation which it will bear."Madison, James. " [http://www.constitution.org/fed/federa42.htm Federalist #42] " (1788).] Of the expanded clause in the Constitution, Madison wrote that it established a power that "may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States."

Interpretation after ratification of the Constitution

In 1790, shortly after the Constitution had been ratified, Congress took action under the Full Faith and Credit Clause, enacting that "the records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every Court within the United States, as they have by law or usage in the Courts of the state from whence the said records are or shall be taken." [Act of May 26, 1790 titled, "An Act to Prescribe the Mode in Which the Public Acts, Records, and Judicial Proceedings in Each State, Shall Be Authenticated So As to Take Effect in Every Other State." The 1790 act was the progenitor of an act that is currently codified at [http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001738----000-.html 28 USC 1738] . The current act was [http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001738----000-notes.html amended in 1948] to give state statutes the same interstate effect as state judgments.] In 1813, the United States Supreme Court interpreted this federal statute, in the leading case of "Mills v. Duryee". ["Mills v. Duryee", [http://press-pubs.uchicago.edu/founders/documents/a4_1s10.html 11 US 481] (1813).] Justice Joseph Story wrote for the Court that it was the federal statute (rather than the constitutional provision) that made records from one state effective in another state:

It is argued, that this act provides only for the admission of such records as evidence, but does not declare the effect of such evidence, when admitted. This argument cannot be supported. The act declares, that the record, duly authenticated, shall have such faith and credit as it has in the state court from whence it is taken. If in such court it has the faith and credit of evidence of the highest nature, viz., record evidence, it must have the same faith and credit in every other court.

Although the Court was engaged in statutory interpretation in "Mills", the Court eventually characterized "Mills" as a constitutional decision, in the 1887 case of "Chicago & Alton v. Wiggins". ["Chicago & Alton v. Wiggins", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=119&page=616 119 U.S. 615] (1887): "Without doubt the constitutional requirement (article 4, 1) ... implies that the public acts of every state shall be given the same effect by the courts of another state that they have by law and usage at home. This is clearly the logical result of the principles announced as early as 1813, in Mills v. Duryee, 7 Cranch, 481, and steadily adhered to ever since."] During the following decades and centuries, the Supreme Court has recognized a "public policy exception" to both the Full Faith and Credit Clause and the accompanying federal statute. In 1939, the Court in "Pacific Employers Insurance v. Industrial Accident" wrote:

[T] here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See "Wisconsin v. Pelican Insurance Co.", 127 U.S. 265; "Huntington v. Attrill", 146 U.S. 657; "Finney v. Guy", 189 U.S. 335; see also "Clarke v. Clarke", 178 U.S. 186; "Olmsted v. Olmsted", 216 U.S. 386; "Hood v. McGehee", 237 U.S. 611; cf. "Gasquet v. Fenner", 247 U.S. 16. And in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events ["Pacific Employers Ins. Co. v. Industrial Accident Comm'n", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=306&invol=493 306 U.S. 493] , 502 (1939).]

The Supreme Court continues to apply its public policy exception differently for state judgments as compared to state laws. In the 2003 case of "Franchise Tax Board v. Hyatt", the Court reiterated that, " [o] ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.""Franchise Tax Board v. Hyatt", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-42 538 U.S. 488] , 494 (2003), quoting "Baker v. General Motors", 522 U. S. 222, 232 (1998).]

If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage (such as polygamy, miscegenation, consanguinity, civil judgments and orders, criminal conviction and others).Fact|date=August 2008 In cases of out-of-state judgments, the Court has stated that there may be public policy exceptions to the Full Faith and Credit Clause, but not a "roving" public policy exception as there is for out-of-state laws. ["Baker v. General Motors", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/522/222.html 522 U.S. 222] (1998).]

ame-sex marriage

The Full Faith and Credit Clause has been noted for its application involving orders of protection, for which the clause was expounded upon by the Violence Against Women Act, child support, for which the enforcement of the clause was spelled out in the Federal Full Faith and Credit for Child Support Orders Act (usc|28|1738B), and its possible application to same-sex marriage, civil union and domestic partnership laws and cases, as well as the Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. The clause has been the chief constitutional basis for challenges to the DOMA.

As of early 2004, 39 states have passed their own laws and constitutional amendments, sometimes called "mini DOMAs," which restrict marriage to opposite-sex couples. Most of these "mini DOMAs" explicitly prohibit the state from honoring same-sex marriages performed in other jurisdictions.

Supreme Court Justice Antonin Scalia stated in his dissenting opinion to the "Lawrence v. Texas" decision that he feared application of the Full Faith and Credit Clause to the majority’s decision in that case might destroy "the structure... that has permitted a distinction to be made between heterosexual and homosexual unions." If Scalia's dissenting opinion holds true, the majority ruling could potentially negate the DOMA and create a legal situation in which all states might eventually be obliged to recognize same-sex marriages performed in Massachusetts, California, or Connecticut.

In August 2007, a federal appeals court held that, "Oklahoma’s adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples." [" [http://www.ca10.uscourts.gov/opinions/06/06-6213.pdf Finstuen v. Crutcher] " (10th Cir. 2007).]

Footnotes

External links

* [http://www.archives.gov/exhibit_hall/charters_of_freedom/constitution/constitution_transcription.html Transcription of the US Constitution at the National Archives]
* * [http://www.state.de.us/midatlanticffc/orders.htm Full Faith and Credit Provision of the Violence Against Women Act by Delaware State]
* [http://www.state.de.us/midatlanticffc/allstates.htm A guide to Full Faith and Credit concerns in the Mid-Atlantic Region by Delaware State]
* [http://www.365gay.com/newscon04/02/020404consRxn.htm 365Gay.com article] Dead link|date=May 2008
* [http://www.mountainpridemedia.org/oitm/issues/2003/09sep2003/news02_canadian.htm Mountain Pride Media article]