Guns, Gays, and the Full Faith and Credit Clause

Print Version > Guns, Gays, and the Full Faith and Credit Clause
BY ARTHUR S. LEONARD

Last week, the Senate narrowly defeated a proposed amendment to the Defense Appropriations Bill, under which people who had licenses to carry concealed weapons issued by their home state would be allowed to carry such weapons everywhere in the US, including those states with stricter licensing criteria or outright bans.

The main argument against the amendment was that states should be allowed to establish their own policy on who, if anybody, can carry concealed weapons. Giving nationwide effect to any particular state’s licenses would therefore invade the right of each state to decide what is necessary to preserve public order in its own jurisdiction.

I was struck by the fact that during the debate nobody invoked the Full Faith and Credit Clause of the US Constitution (found in Article IV, Section 1), which provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” No senator chose to make the argument that the proposed amendment was unnecessary because the FFCC already requires states to honor concealed weapons licenses issued by other states.

This question occurred to me because in 1996 a frenzy over the Full Faith issue regarding the recognition of same-sex marriages led Congress to rush through, by huge margins, the federal Defense of Marriage Act. At the time, it was argued, Congress needed to pass what became Section 2 of DOMA because Hawaii was on the verge of allowing same-sex couples to marry. Because Hawaii had no residency requirement for marriage, same-sex couples from all over the country could flock to Hawaii, marry, and then demand that their home states recognize their marriage under the FFCC, DOMA’s proponents warned. Its enactment was necessary, they said, to preserve the right of individual states to resist marriage equality from invading their jurisdictions.

In the case of both guns and marriage, we are talking about a license issued by the state after a state clerical employee determines that the specified requirements are met. After a license is issued, a copy of it is on file in some government office — or more likely today, retained as an electronic record in a state database. The statutes and regulations governing license requirements probably meet the definition of “public acts,” and the filed licenses are undoubtedly “public records.” But in neither case — the issuance of a concealed weapon license or the issuance of a marriage license — is a judge involved, so my bet is that neither qualifies as a “judicial Proceeding.” Even when a judge officiates at a civil wedding ceremony, that is not a formal court proceeding.

Given the similarities of these two licensing procedures, I think it is fair to conclude that the recent gun debate illuminates the ignorance rampant during the ’96 DOMA hysteria.

My own research led me to write, in a law review article more than a decade ago, that the FFCC does not compel marriage recognition by the states, because a marriage itself is not a public Act, a public record, or a judicial Proceeding. The case law on marriage recognition suggests that one state recognizing the marriages of another is a matter of comity — courtesy or mutual civility between them, in popular parlance — not of compulsion under the FFCC. States have always been free to refuse to recognize marriages that could not have been performed in their own jurisdiction if they concluded that according recognition would be inconsistent with their own public policies, as articulated in statutes, regulations, and state judicial opinions.

Those who argued that Section 2 of DOMA, which provides that states are not required to recognize same-sex marriages from other states, was necessary to protect states from being compelled to recognize such marriages were just plain wrong. In its FFCC jurisprudence, the Supreme Court has never ruled that states are required to recognize marriages from other states.

States are required to recognize divorces and adoptions from other states, mind you, because in those instances there is a “judicial Proceeding” — a divorce or an adoption results from a court order based on a judgment exercised by a duly authorized judicial officer, so the FFCC literally applies. This has been dramatically confirmed recently by state appellate decisions in Florida and Louisiana holding that adoptions by same-sex couples judicially approved in other jurisdictions would be recognized pursuant to the FFCC, regardless of the fact that neither Florida, which bans all adoptions by gay people, nor Louisiana allows same-sex couples to adopt children within their states.

And that, by analogy, explains why in the absence of the proposed gun amendment, states are free to ignore or refuse to recognize permits to carry concealed weapons issued by other states. A permit or license does not come within the FFCC. The permit or license is not a “public Act,” a “public record,” or a “judicial Proceeding” as those terms are used in the FFCC. My license to practice law in New York does not entitle me to practice law in New Jersey by virtue of the FFCC. The same is true of medical licenses, and other licenses to engage in various professions regulated by the states, including teaching. I don't think anybody has ever successfully argued that the public schools of other states are required to honor licenses issued by the New York State Education Department.

The lesson to be learned from the gun debate, however, is not only important for DOMA’s proponents to understand — it is also relevant for advocates seeking to undo it. In an interview with the Bay Area Reporter this week, New York Congressman Jerrold Nadler made clear that legislation he intends to introduce shortly would repeal not only Section 3 of DOMA — which bars the federal government from recognizing same-sex marriages — but also Section 2. Should the federal government choose to recognize valid same-sex marriages, they would likely extend the corresponding federal rights and benefits regardless of whether a married couple’s marriage is recognized by their home state — and it appears as though Nadler intends to make this policy explicit through what he termed a “certainty provision.”

Repealing Section 2, however, would still not have the effect, in my view, of compelling any state to recognize same-sex marriages from another jurisdiction; arguments about the FFCC would not affect the rights of states to decide which marriages to accord their recognition to. It might, however, remove a psychological barrier, empowering judges to analyze the issue using comity principles rather than just reflexively refusing recognition by citing DOMA.

Interestingly, the lawsuit recently filed by the Commonwealth of Massachusetts challenging the constitutionality of DOMA’s bar on federal recognition of same-sex marriage relies on the view that the federal government has no say constitutionally in what kinds of marriages a state can or must recognize. DOMA’s requirement that the US government not recognize gay marriages from that state infringes on Massachusetts’ rights, guaranteed by the Tenth Amendment, to define marriage as it sees fit, the Commonwealth’s attorney general has argued.

Arthur S. Leonard, Gay City News' legal correspondent, is professor of law at New York Law School, founder and editor of Lesbian/Gay Law Notes, a publication of the Lesbian and Gay Law Association of Greater New York, and author of "Sexuality and the Law: An Encyclopedia of Major Legal Cases."