Marriage and the law: understood properly, the Full Faith and Credit Clause of the Constitution actually protects the right of states to refuse to recognize same-sex "marriages" legitimized in other states.

In the press, on talk radio, and on television, self-styled conservatives and liberals alike are warning Americans that the forced recognition of homosexual "marriage" is inevitable because of the requirements of the Full Faith and Credit Clause of the Constitution. That is to say, a homosexual couple who is legally "married" in one state, Massachusetts for example, would have the right to have that union legally validated in all the other 49 states because the Constitution requires such reciprocity among the states.

Because of this supposed constitutional dictate, many who oppose legalizing homosexual unions support an amendment to the U.S. Constitution prohibiting same-sex "marriage"; otherwise, they warn, the homosexual lobby and their allies in the press and in Congress will use the Full Faith and Credit Clause as a sword to force their will upon the entire country. Fortunately, for those who wish to avoid any unnecessary changes to the Constitution, the analysis described above is faulty and misrepresents the intent of the Constitution, particularly the Full Faith and Credit Clause.

Public Policy Exception

Americans must ask themselves: does the Constitution of the United States actually enable one state that allows same-sex "marriage" to force such a policy on the rest of the Union, regardless of the views of the citizens and legislatures of those other states? The answer is an emphatic "No!" In fact, this very question was recently answered in the U.S. District Court in Tampa, Florida, by U.S. District Judge James S. Moody, Jr. In his decision, Judge Moody correctly held: "The Supreme Court has clearly established that the Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy. Florida is not required to recognize or apply Massachusetts' same-sex marriage law be cause it clearly conflicts with Florida's legitimate public policy of opposing same-sex marriage." This case, brought by a Florida same-sex couple who got married in Massachusetts, is one of what will undoubtedly be many attacks against states that have boldly declared their opposition to recognizing homosexual "marriages" legitimized elsewhere.

In this case, Judge Moody's opinion was correct and, more importantly, it was constitutionally sound. To understand why the Full Faith and Credit Clause would not force all 50 states to officially recognize the same-sex "marriage" law of a single state, one must first know and understand the Full Faith and Credit Clause, its purpose, and its history.

Article IV, Section I of the Constitution reads:

   Full Faith and Credit shall be given in each State to
   the public Acts, Records, and judicial Proceedings of
   every other State. And the Congress may by general Laws
   prescribe the Manner in which such Acts, Records and Proceedings
   shall be proved, and the Effect thereof.

The Founding Fathers wrote Article IV, Section I to strengthen the Union and bolster the authority of the national legislature, compared to the situation that then existed under the Articles of Confederation. Evidence of this is found in the comments made by James Wilson, the admired and respected delegate from Pennsylvania to the Constitutional Convention of 1787. Wilson argued that if Congress were not empowered to declare the effect of state laws, then the states would be nothing more than a loose confederation. This sort of arrangement would perpetuate the failures of the Articles of Confederation by restricting the power of Congress and leaving the states vulnerable to foreign domination or intervention.

Additional proof of the Founders' intent behind the precise wording of the "Full Faith and Credit Clause" is found in The Federalist Papers. In The Federalist, No. 42, James Madison asserts that the Congress must be endowed with a "superintending authority over the reciprocal trade" of the states if the United States were to avoid the centrifugal effect a lack of central control exerted on the confederations of history, such as Switzerland, Germany, and Holland. Madison's remedy for the malady of disunion was to authorize Congress to promote and regulate trade among the states and oversee the conflicts in their respective laws that such intercourse was certain to engender. That is to say, in order to more perfectly unite the states into one country, commercial transactions across state lines, contracts entered into in one state and enforced in another, and judicial rulings needed stability and a threshold level of uniformity that would inspire trust and establish reliability among all citizens in different parts of the new nation.

Congressional Primacy

A careful reading of the Full Faith and Credit Clause reveals that the Constitution empowers Congress, not the Supreme Court, to declare the effect of one state's laws on the laws of her sister states. The Founders' purpose in granting Congress this power reveals that the intent was twofold: first, to strengthen the union; and second, to empower Congress to serve as sort of a traffic cop regarding the impact of state acts and proceedings on other states. As indicated by the evidence from the debates during the Constitutional Convention and the pro-ratification arguments offered by Madison in The Federalist Papers, the primary focus of the Full Faith and Credit Clause was the regulation of interstate trade. This, sadly, is a far cry from the perverse use modern enemies of the Constitution are seeking to make of the Full Faith and Credit Clause.

In this matter of fundamental constitutional importance, it is crucial to understand precisely not only what the Full Faith and Credit Clause was intended to do but what it was not intended to do. What could be more self-evident than that the Founding Fathers did not intend for a single state to be able to force its laws and judicial decisions on the entire nation through this clause?

Regarding marriage in particular, it is a matter of indisputable historical record that states have occasionally refused to acknowledge marriages legally entered into in other states. According to the Supreme Court's interpretation of the Full Faith and Credit Clause, states that have valid public policy exceptions to legal acts of other states do not have to recognize those acts.

There are those who argue that such exceptions would disrupt the smooth and unregulated movement of citizens from state to state without having to worry about whether or not they would have to re-marry if they moved from one state to another. This is an irrational fear, for as the name of the qualification implies, the public policy exception is just that--an exception. The rule that a marriage entered into in one state would be valid in another would still apply, unless that marriage violated the declared public policy of the laws of the second state.

States have refused to recognize marriages solemnized in sister states when those marriages violated community standards for reasons such as polygamy and consanguinity (marrying a close relative), for example. Such refusals to legitimize all marriages entered into in other states have never, despite the fear-mongering of the homosexual lobby and its shills, restricted the free and frequent movement of Americans from one state to another.

To take advantage of the public policy exception, states must clearly declare that same sex unions are against public policy. Such a declaration is most strongly made in the texts of state constitutions, and those states that lack such provisions should amend their constitutions to add such protective language. The new language will also serve to prevent state courts from declaring that state law requires recognition of same sex unions, as the Supreme Judicial Court of Massachusetts did in 2003.

Bedrock Protections

There is an additional aspect of the Full Faith and Credit Clause that would protect states from being constitutionally forced to give legal effect to homosexual unions contracted in other states. The exact wording of the Full Faith and Credit Clause requires that states give "full faith and credit" to the "public acts, records, and judicial proceedings of every other state." Marriages, strictly speaking, are not judicial acts; they are licensed acts and as such they do not fall under the Full Faith and Credit umbrella, any more than a license to practice law in one state guarantees that same right in a neighboring state. The Full Faith and Credit Clause, then, would not only not require one state to validate same-sex unions entered into in another, but would actually protect it from having to do so.

Finally, understanding the Constitution, including the intended purposes and limitations of the Full Faith and Credit Clause, removes the fear that the Full Faith and Credit Clause can be used legitimately as a tool for making homosexual "marriage" the law of the land. Such a use was never the intent of our Founding Fathers, and it violates two centuries of constitutional precedent and interpretation.

The Full Faith and Credit Clause has generally worked smoothly and quietly and has not received the same level of judicial attention as more controversial provisions of the Constitution, such as the interstate commerce clause, due process, equal protection, and the treaty-making power. With the overwhelming prominence of the same-sex "marriage" issue in the news, however, it may become the focus of more attention in the near future and indeed may, as the commerce clause before it, be twisted by a Supreme Court that habitually usurps power, legislates from the bench, and purposefully removes the fetters the Constitution places on its power.

If the Supreme Court takes this tack, it falls upon the U.S. Congress to exercise the authority given it in Article III of the Constitution to limit the jurisdiction of the courts to redefine marriage. Although Congress may be reluctant to wield this power over the judicial branch, it is its duty to do so, and it is the duty of concerned Americans to hold Congress' feet to the fire and seek out and elect men and women committed to uphold the Constitution and preserve the moral bedrock upon which this nation is built--the family that comes from the marriage of a man and a woman.