The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections

By Mark Strasser | Go to book overview

NOTES
1.
Robert Cordell II, "Same-Sex Marriage: The Fundamental Right of Marriage and an Examination of Conflict of Laws and the Full Faith and Credit Clause", 26 Colum. Hum. Rts. L. Rev. 247, 265 ( 1994) ("Facially, the Full Faith and Credit Clause would [seem to] mandate that marriages performed in one state be honored in another").
2.
U.S. Const. Art. 4, § 1.
3.
See, for example, Chicago & A. R. Co. v. Wiggens Ferry Co., 119 U.S. 615, 622 ( 1887) ("Without doubt the constitutional requirement [article 4, § 1] that 'full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,' 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"); Douglas Laycock, "Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law", 92 Colum. L. Rev. 249, 296 ( 1992) ("the Clause is most plausibly read as requiring each state to give the law of every other state the same faith and credit it gives its own law -- to treat the law of sister states as equal in authority to its own").
4.
Baker v. General Motors Corp., 118 S. Ct. 657, 663 ( 1998) ("Our precedent differentiates the credit owed to laws [legislative measures and common law] and to judgments"); Lea Brilmayer, "Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context", 70 Iowa L. Rev. 95, 97 ( 1984) ("The credit due judgments is, unmistakably, greater than the credit due laws").
5.
See Morris v. Jones, 329 U.S. 545, 547 ( 1947).
6.
Vanderbilt v. Vanderbilt, 354 U.S. 416, 426 ( 1957) ( Frankfurter, J., dissenting) (italics added). See also Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 ( 1943) ("there are some limitations upon the extent to which a state will 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"); Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 502 ( 1939); American Law Institute, Restatement (Second) of the Conflict of Laws §103 ( St. Paul, Minn.: American Law Institute Publishers, 1971) ("A judgment rendered in one State of the United States need not be recognized or enforced in a sister State if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State"). But see William L. Reynolds, "The Iron Law of Full Faith and Credit", 53 Md. L. Rev. 412, 438 ( 1994) ("it is quite doubtful that Section 103 provides an accurate statement of the law"). Professor Reynolds' view has been confirmed by the Baker Court.

Some commentators seem unaware that there has been an ongoing debate about this issue. See Andrew Koppelman, "Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional", 83 Iowa L. Rev. 1, 15 ( 1997) ("It has been settled for nearly a century that no state may invoke its public policy in order to withhold enforcement of a final judgment issued by the courts of another state").

7.
Estin v. Estin, 334 U.S. 541, 546 ( 1948).
8.
Bradford Electric Light Co. Inc. v. Clapper, 286 U.S. 145, 162 ( 1932).

-117-

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The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • Introduction xi
  • 1 - Marriage Rights 1
  • Notes 19
  • 2 - Equal Protection 31
  • Notes 47
  • 3 - The Referenda 53
  • Notes 66
  • 4 - Retroactive Legislation 71
  • Notes 87
  • 5 - Full Faith and Credit 101
  • Notes 117
  • 6 - Subsequent Domiciles and Full Faith and Credit 125
  • Notes 143
  • 7 - Natural Law and Same-Sex Marriage 159
  • Notes 180
  • 8 - The Defense of Marriage Act 187
  • Notes 213
  • Selected Bibliography 225
  • Index 245
  • About the Author *
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