Vox Populi
A Letter to the Editor

Senator Edwards and The Full Faith And Credit Clause
Regarding Recognition of Out-Of-State Marriages

Thursday, October 7, 2004

by Dominick Schirripa

In your commentary on the Vice Presidential Debate you wrote: "Without at all getting into the deepest arcana of "choice of law" rules re: Conflict of Laws as applied to Family Law, let me here merely note that I happened to have been legally married in the State of New York- does Senator Edwards now mean to tell me that, when I moved to the State of New Jersey a little over a decade later, my new State did not have to recognize my Marriage as valid??-- I don't think so!!"

In fact, Senator Edwards is quite correct. The Full Faith and Credit Clause does not require that states recognize marriages performed in other states. In fact, in studying for and taking the bar exam in both New York and New Jersey, a firm principle learned is that, at least in New York, a marriage performed elsewhere will NOT be recognized where it is contrary to "a strong public policy of the State." Thus, if a state decides to allow individuals to marry at the age of 13 and two such individuals do, and then move to New York, this state does not have to recognize the marriage if it feels (probably by means of the courts) that the policy of the state is that 13-year-olds are not competent to enter into marriage.

In fact, I have not yet found a case in which the full Faith and Credit Clause has been interpreted to require recognition of out-of-state marriages. I would be interested to know if you are aware of authority stating as much. Full Faith and Credit requires states to give effect to the judicial acts of sister states. Technically, marriages are a licensed activity, not a judicial act (you get a marriage license not a marriage Order or Decree). Really that would be more akin to being say a licensed electrician. Does Full Faith and Credit require New Jersey to recognize electricians licensed in New York? I don't think so. In the end, I agree with your conclusion that the Kerry-Edwards position seems to be a little logically strained. I also think that the states should recognize marriages performed out of state. But that comes from the notion of comity - for New York, say, to routinely not recognize marriages performed in, say, Connecticut, would almost certainly lead to Connecticut equally ignoring marriages in New York. Which does neither state any good in terms of relations or citizen happiness. But, legally and constitutionally, I don't think your indignation is entirely well supported.

Dominick Schirripa,
New York, NY

Mr. Berg-Andersson responds:

You are certainly correct that- as you yourself noted: "technically"- Marriage is, in and of itself, not a judicial act: in the several States of the United States of America, it is- rather- legally viewed as a civil contract between the parties to the Marriage (indeed, not all that fundamentally different from a contract one might sign promising to make periodic car payments to an automobile dealership directly related to that dealership then delivering a car to the first party). The problem is: we Americans don't tend to think of Marriage that way (and my analogy of the legal position of the marital relationship to that of a sales contract re: an automobile would very likely even offend more than a few of my fellow countrymen)--for, if we did, this whole issue of Gay Marriage would not even be an issue at all! (Instead, Marriage would- as Vice President Cheney's own words in the Vice Presidential Debate ["people ought to be free to choose any arrangement they want- it's really no one else's business"] suggest- be a contract freely entered into by any couple willing to form a household and avail themselves of the protections of that relationship their State might then provide through that State's laws of Marriage and it shouldn't much matter whether the couple so doing happened to be gay or straight!! [if, indeed, most Americans truly felt, as I myself do, that "it's really no one else's business"). The central core of this problem is that Marriage is a one-time solely sacred institution (as it still remains for many who have had, or might wish to have, their own Marriages solemnized via a religious ceremony) within the history of the legal system America inherited from a medieval England in which what constituted a valid Marriage was determined by Church, and not by State (even though America itself later legally separated Church from State).

Therefore, in England, the ecclesiastical courts were the ones with jurisdiction over Marriage (although the kingdom's civil courts could become involved, from time to time, with determining legal questions revolving around whether or not a marriage was valid [as when the issues of inheritance by a wife were raised], evidence, however, seems to suggest that, in such matters, the English civil courts almost always deferred to the "better judgement" of the ecclesiastical courts [on this subject, by the way, I highly recommend- assuming one can find it in the darker corners of some library (I was lucky to find the copy I happen to own!)- James (later, Viscount) Bryce's lecture entitled 'Marriage and Divorce Under Roman and English Law' (in which Bryce also treats of the American Law re: these subjects up to his own time- now about a century ago), published in Volume II of (Lord) Bryce's Studies in HISTORY and JURISPRUDENCE])-- these ecclesiastical courts could alone annul marriages (Divorce, of course, was not permitted by the Church- England being a Roman Catholic country prior to the Reformation and the general view of the indissolubility of marriage was continued even well after the Church of England had broken with the Papacy under Henry VIII [despite Henry VIII's own six wives-- of course, the Crown had at least some prerogatives of which no ordinary Englishman could avail himself]) and also had the ultimate power to determine whether or not a marriage had been legally entered into.

The constituent States of what became the United States of America, of course, never developed any such ecclesiastical courts- hence, Marriage in American Law being (at least in theory) a purely civil matter (though, or so I am sure, the average American of, say, the Federal Period- perhaps even moreso than nowadays- viewed Marriage as being, in addition, a sacred institution): again, as you so correctly pointed out, Marriage in America was- and is- not a judicial act per se (though this concept was largely an inheritance from English Common Law, in which the sole act making a marriage valid was consent to it by persons legally capable of such consent). There have even been times and places in America when and where Marriage hasn't even been licensed by the State (for example, the whole concept of so-called "Common Law" Marriage [based on that very concept of "consent alone making a marriage" in Anglo-American Common Law, hence the name], in which a couple more or less simply presented themselves to the broader community as Man and Wife-- probably the fullest expression of Marriage being merely a civil contract, one where people were truly "free to choose any arrangement they want"!)

'Tis true that, in New York State, no marriage contrary to that "strong public policy" of that State will be recognized in that State (and this is pretty much true of all States [see bracketed paragraph below]): however, the determination of when a given marriage might be in violation of that "strong public policy" is in the hands of the courts. For instance, in the case of In re May's Estate (305 N.Y. 486 [1953]), the New York Court of Appeals (the highest court in that State- I know you know this, Mr. Schirripa: I state this only for those reading this who might not understand that, in New York, the Supreme Court is the trial court and not the court of last resort) ruled that a marriage between a man and his niece in Rhode Island was valid in New York, even though this marriage would not have been allowed to have been solemnized in New York under New York marriage statutes. A similar case, on the other hand, is Catalano v. Catalano (148 Conn. 288 [1961]), in which Connecticut's Supreme Court of Errors (the older name of the highest court in that State) ruled that a marriage between uncle and niece was invalid (though, in this latter case, the marriage had been solemnized in Italy-- might much be made of the fact that the May marriage was celebrated in another State of a Union which does have a Full Faith and Credit Clause in that Union's Constitution while the Catalano nuptials were held in another country?).

[The Court Opinion in the Catalano case, by the way, contains a very well stated summary of the "choice-of-law" rules governing Marriage which were touched upon by Mr. Schirripa: the Opinion states It is the generally accepted rule [within the concept known as Conflict of Laws] that a marriage valid where the ceremony is performed is valid everywhere. There are, however, certain exceptions to that rule, including one which regards as invalid... marriages... contrary to the strong public policy of the domicil though valid where celebrated. I state this here only to more fully clarify what Mr. Schirripa was writing about in his 'vox Populi' above-- so that everyone reading this can now be "on the same page"]

However, in my opinion, Marriage does come to be viewed as a judicial act once the courts are so called upon to determine whether or not a valid marriage has already been entered into (as, for example, when a court is required to determine the validity of inheritance by someone claiming to have been the spouse of the decedent and- that most commonly known and widely discussed judicial involvement in marriage, perhaps- the whole issue of Divorce)- so it is not as if the American Judiciary is not at all involved in defining the institution nowadays! You are correct when you note that no Order or Decree is at all issued at the time when the persons marry but, certainly, Orders and Decrees are issued once a court has made a determination as to whether or not persons did marry! And any court in any other State is- under the Full Faith and Credit Clause of the U.S. Constitution- bound to take judicial cognizance of any such determinations.

You are most probably correct when you write "In fact, I have not yet found a case in which the full Faith and Credit Clause has been interpreted to require recognition of out-of-state marriages"; I myself have not been able to find any via what was an admittedly cursory search and I here defer to your own judgement, Mr. Schirripa, in your capacity of being someone with a legal background I myself do not have (I only write about these legal issues [even the more technical aspects]- as I write about anything else related to this website- as merely one "John Q. Citizen" who most strongly believes in these words of Theodore Roosevelt: "I am not a lawyer, but I have never believed that a layman who thought soberly was incompetent to express a judgement upon the Constitution"). However, I do- and most soberly- think that the Full Faith and Credit Clause does come into play here in the whole debate over Gay Marriage, not as something that has been used- but more as something those opposed to Gay Marriage fear could be used- to force a marriage between a homosexual couple solemnized in one State to then be recognized in another State, that this is largely what is driving the call for a Federal Constitutional Amendment defining marriage as only between a man and a woman, and it was in this context that I brought it up in my comments re: the recent Vice Presidential Debate.

As for what Senator Edwards specifically said: you yourself wrote that a State recognizing a marriage performed in another State "comes from the notion of comity - for New York, say, to routinely not recognize marriages performed in, say, Connecticut, would almost certainly lead to Connecticut equally ignoring marriages in New York. Which does neither state any good in terms of relations or citizen happiness." I dare say that I can well assume that my marriage performed in New York State would be seen as valid by the courts here in my current State of New Jersey- regardless of whether this is, indeed, based on the concept of comity (which, if only to make the legal meaning of this term most clear to anyone happening to read this, is where the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation[as would be the case if the Full Faith and Credit Clause could be invoked-- REB~A], but out of deference and respect [as stated in Franzen v. Zimmer (35 N.Y.S. 612)])- and this means that the North Carolina Senator's statement, in the Vice Presidential Debate, that "[n]o state for the last 200 years has ever had to recognize another state's marriage" (a statement he then repeated in answer to the next question) is still wrong: if Senator Edwards, instead, might have meant all of us to understand the additional words 'which the first state did not otherwise recognize under its own laws' or some such, he certainly didn't expressly say so!

Therefore, my indignation stands. ;-)


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