Full Faith and Credit

After the Federal Marriage Amendment failed to gather enough support to put it to a vote, Senator Hatch had the following to say:

“If Massachusetts starts honoring gay marriage, that means a state like my home state that doesn’t want to have gay marriage has to honor them,” said Hatch. “Virtually every constitutional authority I know of thinks the full faith and credit clause [in the Constitution] will require recognition of gay marriages.”

I’m not sure that this “spooky” view of the full faith and credit clause is so widerly held as Hatch says he believes. (That’s right–I don’t think he really believes it.) Yale law professor Lea Brilmayer certainly doesn’t think so–her views on the matter can be found in a March 9 op-ed piece that originally ran in the Wall Street Journal. You can read it here.

The National Review has a nifty piece that responds to Professor Brilmayer here.


  1. Anonymous says:


    “I would add my belief that the most fundamental legal and political objection to the proposed ERA was that it would effect a significant reallocation of law-making power from the states to the federal government.”

    Somehow, I doubt that Sean Hannity quoted these words from Dallin Oaks when he headlined this year’s Freedom Fest in Provo.

    Although I personally favored the objectives of the proposed Equal Rights Amendment, I found the Church’s arguments about the divinely inspired division of powers and the proper role of the states in defining relationships to be quite persuasive. It seemed, at the time, that the Church was saying that it favored equality of the sexes, but that messing with the Constitution was a flawed way to pursue that objective and would have serious, negative, unintended consequences.

    I find the Church’s previous arguments against amending the Constitution and causing a huge reallocation of powers from the States to the Federal Government to be far more clear, logical and compelling than any arguments I’ve heard about how gay marriage threatens my freedom to practice heterosexual marriage.

  2. Actually Blaine, I think Mathew doesn’t like the idea of a constitutional amendment: “it ought to be democratically decided in a manner that is as close to local populations as possible. Allowing state legislatures to legislate the definition of marriage seems much more acceptable to me than the Congress…”

    Of course, Mr. Parke is best suited to interpreting his own remarks. My Urim & Thummim only works on reformed Egyptian, not crazy DOMA talk.

  3. Actually Senator Hatch proposed his own amendment langauge this Spring that would essentially be a DOMA amendment. His amendment proposal sought to restrict the definition of marriage to only state legislatures or a state referendum vote. There were some doubts as to whether a federal amendment could lock out state courts out of a state definition. More importatntly, this federalist-friendly proposal wasn’t considered conservative enough by most FMA proponents. His proposal went no where. He thought it might be able to get broader support which in hindsight may have been the case.

    National Review endorsed his proposal.

  4. Apart from the merits of particular arguments, it is certainly understandable (given the trend of recent events) for any legislator to be uncomfortable with assurances that (1) rely on continued application of traditional judicial reasoning by the courts, and (2) are implemented through the judicial branch. The last thing a legislator who thinks courts have usurped legislative prerogative wants to be told is “Don’t worry, we know the courts will see it our way.”

  5. Clark, David, is the word on the hill that somehow FFC will be effective somehow in stirring up the populace? Will most people ever hear of what Sen. Hatch has said?

  6. David,

    When you refer to the committee in your post, are you referring to the Senate Judiciary Committee?

    Doesn’t the fact that they reached no consensus suggest that not virtually every constitutional authority Senator Hatch knows thinks the full faith and credit clause will require recognition of gay marriage?

  7. How about an amendment that would explicitly state that states do not have to apply the full faith and credit clause in the matter of gay marriage? That seems to be a much better solution if what we are really concerned about are attempts by the judiciary to subvert our democratic preferences.

    I think I may care more about how this issue is resolved than the actual outcome. And I do think that it ought to be democratically decided in a manner that is as close to local populations as possible. Allowing state legislatures to legislate the definition of marriage seems much more acceptable to me than the Congress doing it since it appears that large swaths of the country will eventually find enough votes to favor a definition of marriage that includes same sex marriage.

  8. I suspect that the SCOTUS is more than a tad more conservative than the New York Supreme Court. Although perhaps many worry that Kerry will win the fall election and appoint three liberal judges changing the balance. Of course I see all this worry as much ado about little, although I definitely understand the anger at marriage being redefined.

    My personal opinion is that Republicans are worried about losing the Congress and that all this focus and fear mongering is to motivate the base.

  9. I was referring to his first part–“an amendment that would explicitly state that states do not have to apply the full faith and credit clause in the matter of gay marriage.”–essentially what DOMA is.

    The problem with leaving it to state legislatures is that if DOMA is struck down as unconstitutional, then no matter what the body closest to the population decides, 5 judges in Massachusetts get to decide the marriage issue for the whole country.

    But, I doubt that the current pragmatic court would strike down DOMA. If they did, I’m for a DOMA amendment.

  10. I’m not sure how effective statements like what the Senator said are in Utah or anywhere else.

    I do know that our committee had a full hearing on the FFC and whether it could be used to force same-gender marriage on other states. The resulting consensus was that there is no consensus and that pro-traditional marriages types should not wait and see to find out what the courts think.

    I think the Senator was sounding the alarm that this issue is not going away anytime soon and the FFC will be tested pretty soon. We had a hearing a few weeks ago where Sen. Cornyn listed the pending cases in other states that will be considering Mass. marriages.

    It is being used a little as a poltical tool but this issue was not brought by the GOP and there is only a slight risk that it will lose Congress. More likely a help for the President.

  11. Mark Hanzel says:

    In considering this whole issue, I think more people ought to focus on the Tenth Amendment and the critical division of powers between the States and the Federal Government. Any powers not specifically granted to the Federal Government in the Constitution are in the hands of the States. Traditionally, conservatives haven’t favored reallocating powers from the States to the Federal Government. That’s exactly what the proposed Federal Marriage Amendment would do. Four years ago, both Bush and Cheney stated that the issue should be decided by the States.

    The balance of power between the States and the Federal Government was one of the key arguments the Church made against the proposed Equal Rights Amendment. The March, 1980 Ensign contained the following:

    “14. Would the ERA further erode the constitutional division of powers?
    Recognized constitutional authorities state that the Equal Rights Amendment would represent a serious eroding of the powers of states and would result in a massive transfer of legislative power dealing with domestic relations from the states to the federal level. This transfer would greatly disrupt the division of powers central to our constitutional system. Domestic relations laws are now passed, interpreted, and enforced primarily at local and state levels. This permits local flexibility for differing cultures, ideals, and customs. …..

    “Therefore, maintaining the essential separation and division of powers provided for by the divinely inspired Constitution is a moral issue for Latter-day Saints. The Lord himself has said “that every man may act in Â… moral agency, that every man may be accountable for his own sins. Â… For this purpose have I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose” (D&C 101:78, 80; see also D&C 98:5-6). Without the full freedoms and safeguards it guarantees, our people, our ideals, and our practices could be gravely threatened.”

    Then, in 1984, former BYU President, former Utah Supreme Court Justice and current LDS Apostle Dallin Oaks had the following to say during an address at Provo, Utah’s annual Freedom Fest:

    “This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the U.S. Constitution.

    “The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (ERA). When the First Presidency opposed ERA, they cited the way it would have changed various legal rules having to do with the family, a result they characterized as “a moral rather than a legal issue.” I would add my belief that the most fundamental legal and politic

  12. Interesting thoughts. It’s obvious, then, that Hatch is recharacterizing the law in order to overdramatize the situation. Either that, or he’s got a song written about this somewhere and is trying to generate a buzz.

    p.s. Mat, do you want me to change the urls in your post to work as links?

  13. Professor Volokh of the Volokh Conspiracy wrote on this a couple days ago: http://volokh.com/archives/archive_2004_07_14.shtml#1089853905

    I think, as Mathew seems to think, that a better solution would be to add DOMA to the Constitution as an amendment. Hatch’s concern about DOMA being overturned would be resolved and he wouldn’t be infringing on states rights to define marriage as the current amendment does.

  14. Steve,

    The Utah populace at least will hear Hatch’s statement as it was published in the Trib today.

  15. Yes about the ‘committee.’ I apologize for not being clear.

    I’ll grant you that last point. But give him a little license for political puffery. :-)

    I would say that the larger issue is that many of the constitutional authorities who had problems with DOMA or thought the FFC would require marriage recognitions are saying the opposite now. Based on last year’s Lawrence and Goodridge decisions, those who supported DOMA have much less faith in DOMA or the ability of the FFC to withstand same-gender marriage challenges.

    Therefore, based on the former critics of DOMA and the new skeptics, there is good reason to not wait what courts think of DOMA and try a different tactic.

  16. You may disagree with what is the best approach to handle the situation or even if there is a “situation” to deal with. But many of the supporters of DOMA realize that a court that is willing to find same-gender marriage as a constitutional right will have no problem overruling DOMA as unconstitutional.

    While DOMA supporters like the Senator now have little faith in it, it’s telling that many of the same people who opposed DOMA now think it will do just fine. Both know that the legal momentum is behind same-gender marriage.

    (Full disclosure: I work for the Senator, but I don’t sell his CD’s :-) )

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