Elizabeth Jo

So what if you were a part of a same-sex couple, lawfully married in one state, but then moved to a state where same-sex marriage was not legal, right?

So prior to 2015, the answer wasn't really clear at all, because on the one hand, it's actually not clear that it's answered by the full faith and credit clause for complicated reasons.

But let me just put it this way.

On the one hand, a marriage isn't really a judgment.

That's the language of the clause itself.

A marriage is really a civil contract between two people, right?

The court doesn't judge that you're married.

No court does that.

And then second, courts allowed what's called a public policy exception to the full faith and credit clause.

So even if we agreed that a marriage was a judgment, which is a question, it really could be the case that a state court would say, well, it's against the public policy of our state to recognize same-sex marriage.

And then the court might decline to do so.

And in 1996, Congress went even further and passed what was called the Defense of Marriage Act, or DOMA.

I don't know if you remember that.

Yeah.

And then one of the significant things that DOMA did was to allow states to refuse to recognize same-sex marriages, even if these marriages were finalized in states where that marriage was actually illegal.

Well, because of the full faith and credit clause, because the clause itself doesn't just say states have to respect each other's judgments.

It happens to give Congress a source of lawmaking power.

It's called the effects clause.

Right.

So the full faith and credit clause allows Congress to prescribe the manner in which such acts, recordings and proceedings shall be proved and the effect thereof.