Same-Sex Divorce and the Constitution's Full Faith and Credit Clause
Should the state of Texas grant the divorce of a same-sex couple lawfully married in another state?


April 02, 2010 /24-7PressRelease/ -- Same-Sex Divorce and the Constitution's Full Faith and Credit Clause

Generally, the Texas Attorney General doesn't take much interest in individual divorce cases. But the case of Naylor v. Daly is unusual in that both parties are women. So in mid-February, when Attorney General Gregg Abbott intervened in the divorce of the two women who had been married in Massachusetts in 2004, following that state's enactment of same-sex marriage, it made national headlines.

The attorney general intervened in the case one day after the judge in Austin had given preliminary approval to the couple's agreement regarding division of property and custody of their four-year-old adopted son, but before the official divorce decree had been entered. He argued that under Texas law -- which explicitly does not recognize same-sex marriages performed in other states -- the proper course of action would have been for the judge to declare the marriage to be void.

The dispute has drawn attention from around the country, and from Abbott's 2010 opponent for attorney general, Barbara Ann Radnofsky, who argues in an editorial on the national web site Huffington Post that the dispute boils down to a simple reading of Texas Family Code. She argues that the divorce law applies to persons rather than marriages, and therefore the two people in the case may be granted a divorce regardless of the legal status of their marriage.

But behind the headlines is a larger debate with national constitutional implications -- must the state of Texas grant the divorce, because the Full Faith and Credit clause of the U.S. Constitution requires it? That clause calls for states to recognize the "public acts, records, and judicial proceedings of every other state."

Marriages and State Law

Traditionally in the U.S., marriage has been governed by state laws. One example is the minimum age at which a person can marry: In most states it is 18, but historically some states have allowed younger people to marry. In previous decades the various state laws created a patchwork of different rules across the country, leading some love-struck teenagers to cross state lines in order to marry.

Today the minimum age to marry seems to have settled at 18 (although in Nebraska it's 19). But just as one patchwork is becoming uniform, a new wrinkle has come along. Same-sex marriage is now legal in five states and the District of Columbia, but is illegal in many other states, including Texas. Still other states (such as New York) do not grant same-sex marriages, but do recognize same-sex marriages performed elsewhere.

After the Hawaii Supreme Court first put same-sex marriage in the spotlight in 1993, activists on both sides of the debate suggested that the Constitution's Full Faith and Credit Clause would require other states to recognize same-sex marriages. In light of this, the Defense of Marriage Act (commonly called DOMA) was passed with great support in both houses of Congress and signed by President Clinton in 1996.

DOMA has two provisions. One defines marriage for purposes of federal law as being between one man and one woman. The other says that no state or territory is required to give effect to another state or territory's "public act, record, or judicial proceeding" governing marriages between same-sex individuals.

Many states (such as Texas) have enacted their own "mini-DOMAs," which define marriage exclusively as one man and one woman, and explicitly do not recognize same-sex unions from other states.

Full Faith and Credit

Opponents of DOMA claim that the legislation itself is unconstitutional, as it runs afoul of the Full Faith and Credit Clause, which gives effect to judgments across state lines. In simple terms, the Full Faith and Credit Clause ensures that (for example) a person can't move to another state to avoid making payments on the purchase of a refrigerator, just as a person cannot flee to a nearby state to avoid jail time for robbery.

Supporters of same-sex marriage say that states like Texas must recognize gay marriages performed in other states, as these marriages fall under the "public acts, records, and judicial proceedings" mentioned in the Clause.

But DOMA supporters point to a second provision of the Full Faith and Credit Clause, which allows Congress to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." They argue that Congress did just that in enacting DOMA, and therefore individual mini-DOMAs, such as in Texas, are constitutional.

Historically, the Full Faith and Credit Clause hasn't received the attention that some other constitutional provisions have, so experts are unsure how the Supreme Court would treat DOMA under constitutional review. But even some DOMA supporters, such as President George W. Bush, have suggested that it could be subject to constitutional attack via the Full Faith and Credit Clause, and that only a constitutional amendment defining marriage as between one man and one woman would be sufficient to prevent same-sex marriages from being recognized.

Public Policy Exception

Other DOMA supporters point to the "public policy exception" of the Clause, under which the Supreme Court has allowed states to not recognize laws of other states where state public policy is concerned. This exception can apply to enforcing final judgments issued by courts in other states where public policy is implicated. Divorces are considered judgments that change legal status, marriage is a change of legal status. Thus while a court would have to abide by divorces granted in another state, a court could seemingly elect not to recognize a marriage performed in another state, if it was against the home state's public policy.

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