FULL FAITH AND CREDIT: Eugene Volokh replies to Lea Brilmayer

Yale professor Lea Brilmayer writes, in today's Wall Street Journal:

"[N]obody [has] bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state's marriages. It hasn't. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The 'public policy doctrine,' almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses." ...

I actually agree with a good deal of Prof. Brilmayer's other points, such as the value of leaving the matter to the states, and the impropriety of trying to save Massachusetts voters from their own Supreme Judicial Court's interpretation of the state constitution. But the argument I quote above has an obvious weakness -- it only works so far as courts are willing to recognize "longstanding precedent."

Lawrence v. Texas shows that the Supreme Court is willing to overturn a directly on-point Supreme Court precedent that's under 20 years old, and at the same time strike down statutes that have been seen as constitutional for centuries. Goodridge shows that some judges are willing to overturn a many-centuries-old practice of limiting marriage to male-female couples; sure, that was state judges interpreting the state constitution, but what state judges do now, federal judges might do later. On matters of gay rights, quite a few judges -- not by any means all, but quite a few -- are quite willing to set aside both precedent in the sense of traditional understandings and precedent in the sense of squarely controlling Supreme Court decisions. And of course many legal scholars in the gay rights movement has been assiduously arguing that courts should use the Fourteenth Amendment to require states to recognize in-state same-sex marriages, and the Full Faith and Credit Clause to require states to recognize out-of-state same-sex marriages. Judges might well listen to them more than they would to Prof. Brilmayer.

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brief postscript here
posted by Eve at 5:19 PM | link

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