[Congressional Record Volume 150, Number 30 (Wednesday, March 10, 2004)]
[Senate]
[Page S2540]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            FULL FAITH AND CREDIT CLAUSE OF THE CONSTITUTION

  Mr. KENNEDY. Madam President, I welcome this opportunity to call the 
attention of the Senate to an impressive article in yesterday's Wall 
Street Journal by Professor Lea Brilmayer of Yale Law School on the 
proposed amendment to the Constitution on same-sex marriage.
  Supporters of the amendment claim that same-sex marriages in one 
State must be recognized in all other States. That claim is not true. 
As Professor Brilmayer explains, ``Longstanding precedent from around 
the country holds that a state need not recognize a marriage entered 
into in another state with different marriage laws if those laws are 
contrary to strongly held public policy.'' States have broad discretion 
in deciding to what extent they will defer to other states when dealing 
with sensitive questions about marriage and raising families.
  There is no need to amend the Constitution on this issue. States 
across the country are clearly dealing with the issue and doing so 
effectively, according to the wishes of the citizens in each of the 50 
States. If it is not necessary to amend the Constitution, it is 
necessary not to amend it.
  Professor Brilmayer testified on these constitutional issues at our 
Judiciary Subcommittee hearing last week, and I ask unanimous consent 
that her article in the Wall Street Journal be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Wall Street Journal, Mar. 9, 2004]

                         Full Faith and Credit

                           (By Lea Brilmayer)

       Last Wednesday's hearing before the Senate's ``Subcommittee 
     on the Constitution, Civil Rights and Property Rights'' was 
     billed as the occasion for a serious discussion on the need 
     for a constitutional amendment to limit the interstate 
     effects of Goodridge, the Massachusetts court decision 
     recognizing a state constitutional right to same-sex 
     marriage. Why else would the hearing's organizers invite me, 
     a professor with no particular published opinion on gay 
     rights but dozens of technical publications on interstate 
     jurisdiction? Prepared to do battle over the correct 
     interpretation of the Constitution's Full Faith and Credit 
     Clause, I found myself instead in the middle of a debate 
     about whether marriage is a good thing, and who really loves 
     America's kids the most--Republicans or Democrats.
       Like many political debates, the discussion was framed in 
     absolutist terms. Conservatives say that without a 
     constitutional amendment, Goodridge goes national. Gays will 
     travel to Massachusetts to get married and then their home 
     states will be forced (under the Full Faith and Credit 
     Clause) to recognize their marriages. Traditional marriage 
     (apparently a frailer institution than I'd realized) will be 
     fatally undermined unless we act now to prevent the 
     Massachusetts Supreme Judicial Court from imposing its will 
     upon the whole nation. Either amend the Constitution to adopt 
     a national, and traditional, definition of marriage (they 
     say) or there will soon be gay and lesbian married couples 
     living in your own neighborhood. Either it's their nationwide 
     standard--anyone can marry--or it's ours.
       The fly in the ointment was that nobody bothered to check 
     whether the Full Faith and Credit Clause had actually ever 
     been read to require one state to recognize another state's 
     marriages. It hasn't. Longstanding precedent from around the 
     country holds that a state need not recognize a marriage 
     entered into in another state with different marriage laws if 
     those laws are contrary to strongly held local public policy. 
     The ``public policy doctrine,'' almost as old as this 
     country's legal system, has been applied to foreign marriages 
     between first cousins, persons too recently divorced, persons 
     of different races, and persons under the age of consent. The 
     granting of a marriage license has always been treated 
     differently than a court award, which is indeed entitled to 
     full interstate recognition. Court judgments are entitled to 
     full faith and credit but historically very little interstate 
     recognition has been given to licenses.
       From a technical legal point of view, the debate at last 
     week's hearing was entirely unnecessary. But inciting a 
     divisive and diversionary debate over whether America's 
     children will only thrive in traditional marriages (on the 
     one hand) or whether people who oppose gay marriage are 
     bigots (on the other) was probably a central objective in 
     certain quarters. Social conservatives, in particular, have a 
     vested interest in overstating the ``domino effect'' of 
     Goodridge. This is particularly true in an election year. 
     Only an ivory tower academic carrying a text full of 
     footnotes would notice anything odd.
       The assumption that there must be a single national 
     definition of marriage--traditional or open-ended--is 
     mistaken and pernicious. It is mistaken because the existing 
     constitutional framework has long accommodated differing 
     marriage laws. This is an area where the slogan ``stages 
     rights'' not only works relatively well, but also has 
     traditionally been left to do its job. We are familiar with 
     the problems of integrating different marriage laws because 
     for the last 200 years the issue has been left, fairly 
     successfully, to the states. The assumption is pernicious 
     because the winner-takes-all attitude that it engenders now 
     has social conservatives pushing us down the constitutional-
     amendment path. For those who see the matter in terms of gay 
     rights, this would be a tragedy. But it would also be a 
     tragedy for those who genuinely favor local autonomy, or even 
     those of us who genuinely favor keeping the constitutional 
     text uncluttered by unnecessary amendments.
       If today's proponents of a marriage amendment are motivated 
     by the fear of some full faith and credit chain-reaction set 
     off in other states by Massachusetts, they needn't be. If 
     they are motivated by the desire to assert political control 
     over what happens inside Massachusetts, they shouldn't be. In 
     our 200-year constitutional history, there has never yet been 
     a federal constitutional amendment designed specifically to 
     reverse a state's interpretation of its own laws. Goodridge, 
     whether decided rightly or wrongly, was decided according to 
     Massachusetts' highest court's view of Massachusetts law. 
     People in other states have no legitimate interest in forcing 
     Massachusetts to reverse itself--Massachusetts will do that 
     itself, if and when it wants to--and those who want to try 
     should certainly not cite the Full Faith and Credit clause in 
     rationalizing their attempts.
       Unlike most other hotly contested social issues, the 
     current constitutional marriage debate actually has a 
     perfectly good technical solution. We should just keep doing 
     what we've been doing for the last 200 years.

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