Thoughts on the Constitutionality of DOMA
With J’s Blog noting the “constitutional issue” raised by the Defense of Marriage Act & Obama’s defense thereof, I figured I’d offer a few thoughts. In brief, I believe that DOMA is consistent with the original meaning of the Full Faith & Credit clause of the Constitution. Note that, lacking time & resources, I’ve not thoroughly researched the primary sources from the Founding era (e.g., ratification conventions, dictionaries, correspondence, etc.); rather, I’m mainly working off secondary sources . And for any lawyers out there…my apologies in advance for screwing up any of the legal concepts & terminology, and failing to more thoroughly footnote this post.
By way of introduction: Sec. 2 of DOMA, codified in Title 28 of the United States Code, reads:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Although nowhere stated in the DOMA itself, the phrase “public act, record, or judicial proceeding” in the aforementioned excerpt clearly suggests that DOMA is being passed under the Full Faith & Credit Clause of the Constitution.
A. Background: Evidence, Terms, & The Prime Facie Rule:
1. It’s important to understand the context in which the Full Faith & Credit Clause (hereinafter FFC) was drafted & ratified. Transportation & communication were considerably slower & less reliable than they are nowadays. In such an environment, it was understandable that greater emphasis might be placed (relative to nowadays) on the importance of determining the authenticity of a document purporting to contain a law or judgment from outside a given court’s jurisdiction. Moreover, making foreign judgments self-enforcing within a given state, w/o qualification, would appear to be a clear infringement upon the sovereignty of that state. As such, when presented w/ a foreign law, judgment, etc., courts faced two questions of non-trivial importance:
a) Was the document in question authentic (i.e., did the law, judgment, etc., that it purported to contain actually exist); and
b) Assuming #1 was true, what effect should the evidence presented by said document have upon the merits of the case before the court. I.e., was said evidence conclusive as to the merits of the case (i.e., conclusively establishing some sort of obligation), or rebuttable?
2. The terms “faith” and “credit” are originally from English law of evidence. Over time, they evolved to encompass meanings re. effect, as well as admissibility or authenticity, of evidence. “Full” could also mean “conclusive” or merely “sufficient” (yet rebuttable). Even if “full faith and credit” were taken to mean “conclusive”, an out-of-state record could merely be “conclusive” WRT the existence of the law or judgment in question – but not conclusive (i.e., res judicata) WRT the merits of the in-state case. The fact that there is more than one possible meaning for “full faith and credit” requires looking to original documents (e.g., Convention, Federalist, early judicial decisions) & usage to determine original meaning.
3. The common law rule for out-of-state court judgments was the “prima facie rule”, under which an out-of-state judgment was viewed as constituting prima facie evidence of an obligation (e.g., debt), but were not granted the same (res judicata, i.e., conclusive or self-executing) effect accorded home state judgments. Under this rule, the same merits originally decided by the out-of-state judgment could basically be re-tried in the home state’s court, w/ the out-of-state judgment simply being a piece of written evidence (like a contract) rebuttable by other evidence, defenses, etc. State-level legislation was required to accord out-of-state judgments any greater substantive weight than the common-law prima facie rule. E.g., under res judicata, re-trial on the merits was not permitted, as the mere existence of a valid sister-state judgment would (basically) conclusively determine the merits of the case in the home-state court.
Hence, under res judicata, if A won a judgment against B in State X, and B moved to State Y, A could sue B in State Y’s courts, and all he’d have to do to conclusively prove the existence of (say) B’s debt to A would be to present an authenticated copy of the judgment from State X. Under the prima facie rule, by contrast, the State X judgment would be treated merely as prima facie (not conclusive) evidence that B owed a debt to A; and B could basically get the case (originally tried in State X’s courts) re-tried in State Y’s courts. This would be because, under the prima facie rule, State Y was not obligated to treat State X’s judgments as being inherently enforceable in its own jurisdiction.
B. Full Faith & Credit Models:
There are two basic models for interpreting the Constitution’s FFC:
1. Contemporary Model of the FFC: First sentence obligates states to give some degree of effect to out-of-state “public Act[s], Records, and judicial Proceedings”. Precise degree of such effect is a judicial question. Via the second sentence, Congress may (or may not) be able to qualify the courts’ rulings re. effect of sister-state acts, records, & proceedings (ARP). Hence, by this interpretation, A & B get married in State X, and move to State Y. Per the first sentence of the FFC, State Y is obligated to recognize A & B’s marriage, notwithstanding any State Y laws to the contrary, and even absent any Congressional enactment to that effect.
2. Alternate Model of the FFC: FFC’s first sentence refers to evidence, obligating states to admit authenticated copies of out-of-state ARPs as evidence, and to treat them as conclusive evidence of the existence of the statute, judgment, etc., that they purport to contain. The second sentence gave Congress authority to prescribe rules re. authentication & substantive legal effect (i.e., on the merits of cases) of out-of-state ARPs. Absent Congressional enactment re. effects, the effect of out-of-state ARPs on the merits of a given state-level case remained (like anything else, per Article I & 10th Amendment) a matter of state or common law. By this interpretation, State Y (from above) would not be constitutionally obligated to recognize A & B’s marriage; and it would be well within Congress’s power to pass a law prescribing that marriages of a certain type shall have no effect in states that do not recognize said marriages.
1. The Articles of Confederation contained an FFC was similar to first sentence of Constitution’s FFC . Yet Confederation-era state court decisions re. Articles FFC did not  view the clause as granting out-of-state judgments conclusive effect on the merits of the cases being decided. In the view of such these courts, the Articles FFC pertained to the evidentiary weight – as opposed to the substantive effect – to be accorded out-of-state judgments. The substantive effect accorded such judgments was viewed as being governed by either state legislation (if any), or the common-law, pre-Confederation prima facie rule.
2. The prospect of sister-state laws being mandatory upon other states was discussed – and rather unwelcomed – at the Convention; Johnson & Randolph apparently objected to language (i.e., “…Legislature shall by general laws prescribe…the effects…”) that arguably required Congress to impose sister-state laws upon other states. Madison’s motion to change that “shall” to “may” carried. While not conclusive re. original public meaning, this discussion – in combination w/ the general pro-states-rights milieu of the Founding era – suggests that an FFC clause mandating recognition of out-of-state laws within a given state probably wouldn’t have passed muster come ratification.
3. Federalist #42 on the Constitution’s FFC:
The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation [a]. The meaning of the latter [b] is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.
[a] Moreover, Federalist #42 clearly contradicts those  who held that “thereof” in the FFC referred not to “such Acts, Records, and Proceedings”, but rather “the Manner in which” the ARPs “shall be proved”. In the first sentence of the aforementioned excerpt, the term “they” (in the phrase, “the effect they shall have in other States”) clearly refers to “public acts, records, and judicial proceedings of each state” in the preceding clause, not to the (singular) term “manner”. Even if the Constitution’s drafting history – which confirms this reading of “thereof” – wasn’t publicly available, the Federalist obviously was; hence such a meaning of “thereof” was a “public meaning”)
[b] By “the latter”, Madison of course refers to the FFC of the Articles, whose wording was very similar to that of the first sentence of the Constitution’s FFC (except that the Articles FFC didn’t apply to public acts & non-judicial records). The contrast between how Madison describes the Articles FFC (i.e., “extremely indeterminate” and “of little importance”) – and by implication, the first sentence of the Constitution’s FFC – contrasts w/ the remainder of this passage, whose phrasing (i.e., “prescribing by general laws…the manner…and the effect) clearly refers to the FFC’s second sentence. IOW, Madison (by implication) ascribes little substantive importance to the FFC’s first sentence; and instead locates the power to determine “effects” in the second sentence.
6. In 1790, Congress passed a law aimed at implementing the FFC. The last sentence of that law read,
And the said records and judicial proceeding 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 the said records are or shall be taken. 
Since, by this sentence, the First Congress arguably intended to give some sort of substantive effect to out-of-state records & judicial proceedings, supporters of the Contemporary Model plausibly might cite said sentence use of the terms “faith and credit” in support of their position. As noted in A.2, above, using “faith and credit” to refer to substantive effect was plausible. However, the judicial debate that occurred following passage of the 1790 Act yields little support for this argument. For many judges, the terms “faith and credit” were indelibly associated with the law of evidence; this led them to conclude that the aforementioned second sentence had no substantive effect whatsoever; and that the 1790 Act merely established procedures for authenticating out-of-state judgments & records. Hence, e.g., Judge Radcliff of the New York Supreme Court wrote in 1803:
At first view, the framers of this act seem to have intended a regulation beyond the provision contained in the constitution; but if this was their intent, I think they have not accomplished their end. […] The constitution…makes the distinction…between credit and effect. With this distinction, plainly drawn, I cannot suppose that congress meant to confound it by treating the terms faith and credit, as synonymous with effect. […] Nothing more than the mode of authentication was, therefore, provided for by the act of congress. When so authenticated, they are entitled to full faith and credit; but they are to be received as evidence merely, by which their contents are undeniably established, and their effect or operation, not being declared, remains as at the common law .
Such an outcome is more consistent with the Alternate Model mentioned above, than with the Contemporary Model.
Moreover, arguing that “faith and credit” in the 1790 Act refers to effects (either in addition to or in lieu of evidence) necessarily implies the existence of Congressional power to declare such effects.
I tend to agree with Whitten & Engdahl’s take on the 1790 Act: that the use of “faith and credit” in said act, while although indeed referring to substantive effect, was not so much evidence of the FFC’s original meaning, as an example of sloppy legal draftsmanship on the part of Congress.
7. The aforementioned judicial debate following the 1790 Act implementing the FFC is illuminating. Many judges, like Judge Radcliff above, clearly recognized a difference between the evidentiary value of an out-of-state record, & the substantive effect thereof; viewed the FFC’s first sentence as addressing only evidence; and concluded that prescribing substantive effect was left to Congress. The Contemporary Model – that first sentence of FFC addressed effects, as well as evidentiary value, of out-of-state acts, records, & proceedings – was a minority view in the early Republic, commanding support among only five of the fifteen federal & state judges that considered the question . The remainder took a contrary stance, espousing the Alternate Model mentioned above: They held that the FFC’s first sentence concerned only evidentiary value, with effect left to Congressional discretion by the second sentence. Had the aforementioned Contemporary Model been the consensus view, this judicial debate never would have occurred.
8. Although all of the aforementioned discussions & cases pertain to out-of-state judgments, they are equally relevant to “records” and “public acts”, since these are all mentioned together in the FFC. If the first sentence of the FFC was not viewed as granting substantive effect to out-of-state judgments, then one cannot plausibly argue that it did grant such effect to out-of-state statutes.
The support of Federalist No. 42 for the Alternate Model (and the inconsistency of the Contemporary Model with the same); combined with the predominance of said model among the judiciary of the early Republic; leads me to conclude that the original meaning of the Full Faith & Credit Clause conforms with the Alternate Model, and not with the Contemporary Model. That being the case, we can likewise conclude that the Clause does not obligate states to recognize out-of-state marriages absent an Act of Congress; and that, on the contrary, it is well within Congress’s power under the Clause to deny such recognition. Likewise, under the Tenth Amendment, state governments retain the power to deny recognition to out-of-state marriages if they so choose.
We can therefore conclude that both the Defense of Marriage Act & state laws denying recognition to out-of-state gay marriages are consistent with the original public meaning of the Full Faith & Credit Clause.
- Engdahl, David E., “The Classic Rule of Faith and Credit“, 118 Yale L.J. 1584 (2009).
- Laycock, Douglas, “Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law”, 92 Columb. L. Rev. 249 (1992)
- Sachs, Stephen E., “Full Faith and Credit in the Early Congress” (November 26, 2007). Virginia Law Review, Forthcoming. Available at SSRN.
- Whitten, Ralph U., “The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act”, 32 Creighton L. Rev. 255 (1998)
 Compare Article IV of the Articles of Confederation:
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.
With Article IV, Sec. 1 of the Constitution:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
 Except for Jenkins v. Putnam, 1 Bay 8, 1 S.C.L. 8 (S.C. Com. P. Gen. Sess. 1784). Note, however, that this was an admiralty case, and that in such cases, foreign judgments were granted res judicata.
 E.g., Justice Livingston in Hitchcock and Fitch v. Aiken, 1 Cai. R. 460, 3 Johns. Cas. 595 (N.Y. Sup. Ct., November Term, 1803):
[M]y opinion is drawn from the constitution, and is altogether independent of this  act; for it is not clear that congress had anything to do with the effect…. It is extraordinary, to say the least, that after the constitution had declared that “full faith and credit” were to be given them, it should be left with congress to vary their operation, if they thought proper. […] Instead, then, of expecting congress to settle the effect of domestic judgments, we must not look further than the constitution itself….
 Act of May 26, 1790, c. XI, 1 Stat. 122.
 Seriatim opinion of Radcliff, J., in Hitchcock and Fitch v. Aiken, 1 Cai. R. 460, 3 Johns. Cas. 595 (N.Y. Sup. Ct., November Term, 1803).
 See Whitten, supra note , p. 326.