On May 30th, 2008, the Anchorage Daily News reports that the attorneys general of 10 states are urging the California Supreme Court to delay finalizing its ruling to legalize same-sex marriage. The states involved are Alaska, Colorado, Florida, Idaho, Michigan, Nebraska, New Hampshire, South Carolina, South Dakota and Utah. Additional report from KNBC Channel 4 in Los Angeles.
The 172-page California Supreme Court decision can be viewed HERE in PDF format.
In court documents filed on Thursday May 29th, they claim they have an interest in the case because they would have to determine if their states would recognize the marriage of gay residents who wed in California. They protested that their states, which restrict marriage to unions of a man and a woman, would be inundated by litigation seeking to have them recognize same-sex nuptials in California. And they could well be concerned about the "full faith and credit" clause contained in Article IV of the U.S. Constitution, which requires states to recognize the public acts, records, and judicial proceedings of other states. They want the court to stay its ruling until after the November 2008 election, when California voters will decide whether or not to amend the state constitution to ban gay marriage.
The San Francisco Chronicle reports that California Attorney General Jerry Brown opposes any attempt to delay implementation of the court ruling, despite the risk that it could be overturned by a voter initiative in November, leaving all the interim gay marriages in "limbo". Gay marriages are expected to begin in California as early as June 17th.
Commentary: Article IV, Section 1 of the U.S. Constitution states the following:
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.
Consequently, there is concern about whether Alaska might be judicially required to recognize a gay marriage performed in California, despite the fact that the Alaska State Constitution specifically defines marriage as being only between one man and one woman. A court might hold that although Alaska has no obligation to allow the performance of gay marriages within the state, Alaska must recognize gay couples who move in from outside Alaska as being married, and accord them the status and benefits customarily reserved only for heterosexual married couples.
This concern is valid. Back in February 2008, I discussed the case of Patricia Martinez v. County of Monroe in New York, where a state appellate court ruled on Friday February 1st, 2008 that valid out-of-state marriages of same-sex couples must be legally recognized in New York, just as the law recognizes those of heterosexual couples solemnized elsewhere. Lawyers for both sides said the ruling applied to all public and private employers in the state. The original media story was published in the New York Times. The five-page court decision can be viewed HERE.
Despite the fact that gay couples may not legally marry in New York, the appellate court in Rochester held that a gay couple’s 2004 marriage in Canada must be respected under the state’s longstanding “marriage recognition rule,” and that an employer’s denial of health benefits had discriminated against the couple on the basis of their sexual orientation. So therein lies the problem - although gay couples may not legally marry in New York, New York was apparently already recognizing those gay marriages performed elsewhere as valid. We do not have that problem in Alaska.
However, the New York court seemed to provide a legislative exit strategy for the state. “The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad,” a five-judge panel of the Appellate Division, Fourth Judicial Department of the New York State Supreme Court ruled unanimously in rejecting a 2006 lower court decision. “Until it does so, however, such marriages are entitled to recognition in New York.” But in the wake of the California Supreme Court decision, would such a proposed legislative solution prove to be court-proof?
Back in 2004, legal analyst Joanna Grossman proposed an interesting argument. She believes that the "full faith and credit clause" could be split into two parts. Here's the pertinent part of her analysis:
That Clause provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." On its face, that would seem to compel states to recognize each others' marriages - if marriages qualify as public acts.
Granted, some states have carved out public policy exceptions - refusing to recognize other states' incestuous marriages, for instance - that are seen as consistent with Full Faith and Credit. Thus, some commentators maintain that the "public policy exception" itself allows states to refuse recognition to same-sex marriage--at least in the many states that have adopted a statute or amended their own constitution to declare such unions impermissible--and thus moots the need for DOMA in the first place. But others disagree whether such an exception is consistent with the Clause at all.
Some legal commentators dispute that marriages come within the Clause at all - since it has historically been applied primarily to judicial decisions or decrees. (Decrees of divorce, for example, compel interstate recognition, as I explained in a prior column, because they are "judgments" and thus clearly within the ambit of the Full Faith and Credit Clause.)
Game over? Not exactly. The Clause also has another part: It says that "[T]he Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Pursuant to the first part of this Clause, Congress passed the Full Faith and Credit Act - which addresses the question of how state acts, records, and judicial proceedings -- "shall be proved."
This interpretation appears to be similar to that taken by the New York court Martinez v. County of Monroe, in which the court implied that a legislative remedy disallowing recognition of out-of-state gay marriages would be court-proof, so long as New York did not allow performance of gay marriages. There might lie the exit strategy.