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The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, which addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments.[1] Judgments are generally entitled to greater respect than laws, in other states.[2] At present, it is widely agreed that this Clause of the Constitution has little impact on a court's choice of law decision,[3] although this Clause of the Constitution was once interpreted differently.[4]
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A similar clause existed in Article IV of the Articles of Confederation, the predecessor to the U.S. Constitution: "Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."[5] A Pennsylvania court explained in 1786 that this provision in the Articles of Confederation did not direct that "executions might issue in one state upon the judgments given in another", but rather was "chiefly intended to oblige each state to receive the records of another as full evidence of such acts and judicial proceedings."[6]
At the Philadelphia Convention, James Madison said that he wanted to supplement that provision in the Articles of Confederation, to let Congress "provide for the execution of Judgments in other States, under such regulations as might be expedient."[7] By September 1, 1787, negotiations at the Constitutional Convention had led to the following draft which included supplementary language as Madison had requested:[8]
After several further modifications, the Full Faith and Credit Clause assumed the form in which it remains today. During the ratification process, James Madison remarked further on this subject, in Federalist No. 42. He wrote that the corresponding clause in the Articles of Confederation was "extremely indeterminate, and can be of little importance under any interpretation which it will bear."[9] Of the expanded clause in the Constitution, Madison wrote that it established a power that "may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States."[9]
The final version provides:[10]
In 1790, shortly after the Constitution had been ratified, Congress took action under the Full Faith and Credit Clause, enacting that "the records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every Court within the United States, as they have by law or usage in the Courts of the state from whence the said records are or shall be taken."[11] In 1813, the Supreme Court interpreted this federal statute, in the leading case of Mills v. Duryee.[12] Justice Joseph Story wrote for the Court that it was the federal statute (rather than the constitutional provision) that made records from one state effective in another state:
It is argued, that this act provides only for the admission of such records as evidence, but does not declare the effect of such evidence, when admitted. This argument cannot be supported. The act declares, that the record, duly authenticated, shall have such faith and credit as it has in the state court from whence it is taken. If in such court it has the faith and credit of evidence of the highest nature, viz., record evidence, it must have the same faith and credit in every other court.
Although the Court was engaged in statutory interpretation in Mills, the Court eventually characterized Mills as a constitutional decision, in the 1887 case of Chicago & Alton v. Wiggins.[13] During the following decades and centuries, the Supreme Court has recognized a "public policy exception" to both the Full Faith and Credit Clause and the accompanying federal statute. In 1939, the Court in Pacific Employers Insurance v. Industrial Accident wrote:
[T]here are some limitations upon the extent to which a state may 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. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265; Huntington v. Attrill, 146 U.S. 657; Finney v. Guy, 189 U.S. 335; see also Clarke v. Clarke, 178 U.S. 186; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16. And in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.[14]
The Supreme Court continues to apply its public policy exception differently for state judgments as compared to state laws. In the 2003 case of Franchise Tax Board v. Hyatt, the Court reiterated that, "[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments."[1]
If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. In cases of out-of-state judgments, the Court has stated that there may be exceptions to the enforcement and jurisdiction of out-of-state judgments, but maintains that there is no public policy exception to the Full Faith and Credit Clause for judgments.[15]
Federal statutory law provides that:
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.[16]
The Full Faith and Credit Clause has been applied to orders of protection, for which the clause was invoked by the Violence Against Women Act, and child support, for which the enforcement of the clause was spelled out in the Federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B).
According to Andrew Koppelman, a law professor at Northwestern University and the author of The Gay Rights Question in Contemporary American Law, "No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to."[17] This issue first arose with regard to interracial marriage. Until the Supreme Court struck down all laws banning interracial marriage in 1967, a number of states banned interracial marriage and did not accept interracial marriage licenses issued in other states.[17] Thus, states were required to recognize an interracial marriage under the Equal Protection Clause and not under the Full Faith and Credit Clause.
There has been much speculation on the clause's possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. Between 1996 and 2004, 39 states passed their own laws and constitutional amendments, which define marriage as consisting solely of opposite-sex couples. Most of the state laws and constitutional language explicitly prohibit the state from honoring same-sex marriages performed in other states and countries. Conversely, several states have legalized same-sex marriage, either by legislation or by state supreme court judgment.
The Supreme Court has not ruled on how or whether these laws are affected by the Full Faith and Credit Clause. However, in August 2007, a federal appeals court held that the clause did require Oklahoma to issue a revised birth certificate showing both adoptive parents of a child born in Oklahoma who had been adopted by a same-sex couple married in another state.[18] Another federal appeals court held differently in April 2011 in a Louisiana case, Adar v. Smith.[19]