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The Confederate Lawyer
June 12, 2008

Will California Rule the United States?
by Charles G. Mills

[Breaker: Will the full faith and credit clause be the latest weapon in the war against marriage?]

When the California Supreme Court instituted same-sex “marriage,” the mayor of San Francisco said, “As California goes, so goes the nation.” There is a real danger that this may turn out to be the case. The governor of New York has instructed all agencies of the state government to recognize California and Massachusetts same-sex marriages. This order is being challenged in the courts. The governor claims that he is not making new law but simply executing the law as it already exists.

Those who want to use the California case to impose same-sex marriage on the entire country claim to rely on Article IV, Section 1, of the United States Constitution, which says, “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.”

By 1940, Nevada had become a divorce mill to which people from all over the United States came to get easy divorces. Most states at the time granted divorces for very few causes, such as adultery or a sentence of life imprisonment without parole. Nevada allowed divorce for “extreme cruelty” and interpreted the term broadly. In two cases involving the same parties, the United States Supreme Court decided in 1942 and 1945 that (except when the states could show fraud beyond a reasonable doubt) all states had to give effect to Nevada divorces because of the full faith and credit clause.

The argument will now be made that the same rules apply in same-sex marriage cases. The question of whether a marriage is a “public act or record” has never been resolved, although state governments do give effect to non-ceremonial common-law marriages valid in the place entered into but not in the state where the spouses live. The cases involving Nevada divorces are based on the idea that at least one spouse actually did live in Nevada for several weeks. A good argument certainly can be made that, since California (unlike Massachusetts) has no residence requirement to marry there, the Nevada divorce cases are simply different and not a precedent for a ruling on a potential same-sex marriage case.

The law on the question of whether a same-sex marriage is entitled to full faith and credit involves such lack of precedent that no prediction on how the courts will resolve it is possible. From a public policy point of view, however, the idea that one state can impose its will on this issue on the entire nation is outrageous.

The second part of Article IV, Section 1, allows Congress to prescribe the effect of the public acts and records. Almost all legislation under this provision, and litigation concerning it, pre-dates the War Between the States. The old cases seem to construe the power of Congress under it quite broadly. In 1996 the Defense of Marriage Act was passed under the authority of this provision. It denies full faith and credit to any marriage other than one between a man and a woman. If the Defense of Marriage Act is not repealed by a new Congress and is not overturned by rogue courts, it will provide protection against the kind of thing the governor of New York is attempting.

There are two major dangers. The first is that courts will begin holding, as a matter of federal Constitutional law, that California same-sex marriages must be respected throughout the country. The second is that state courts will begin to find, as a matter of state constitutional law, that California and Massachusetts same-sex marriages are valid between residents of their states.

Inaction leaves us particularly vulnerable to both dangers. While success is not assured, a strong defense of the constitutionality of the Defense of Marriage Act and vigilance to prevent its repeal are the most likely ways to protect the rest of the country from Californian same-sex marriages. Another action might be state legislation refusing to recognize same-sex marriages. In the Nevada divorce cases, the United States Supreme Court has recognized a state interest in preventing polygamy. There is no reason that such a state interest should not be similarly recognized in same-sex marriage cases. Finally, of course, it is important to support the people of California in their effort to amend the California Constitution to prohibit same-sex marriages.

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The Confederate Lawyer is copyright © 2008 by the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

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