Chapter 1: What is the main topic discussed in this episode?
This is the 99% Invisible Breakdown of the Constitution. I'm Roman Mars.
And I'm Elizabeth Jo.
Today, we are discussing Article 4, which talks about the relationship between the states and between the states and the federal government. We're also skipping ahead a bit and adding the Tenth Amendment to this conversation because that also talks about the states. Our guest for this episode is California Attorney General Rob Bonta.
State attorneys general provide legal counsel to their state's government, oversee state prosecutions, and represent the public interest in a variety of cases. They also have the responsibility of protecting their state's citizens from federal overreach.
Chapter 2: How does Article IV define the relationship between states and the federal government?
What constitutes an overreach can vary widely depending on the state's political leaning and who's in control of the federal government. During the Obama and Biden administrations, red states sued the federal government over issues like Medicaid expansion and environmental regulations.
Now, blue states like California have sued the Trump administration dozens of times for things like withholding federal funding and deploying the National Guard without consent of the state. Attorney General Bonta talks about some of these lawsuits and why he believes the Constitution is on his side.
But first, Elizabeth takes us through what we need to know about Article 4 and the 10th Amendment.
Okay, so unlike Articles 1, 2, and 3, which we've already talked about, they set up the federal government and get a lot of attention.
Chapter 3: What role does the Tenth Amendment play in state rights?
Article 4 does not get too much love. Most people have no idea what it's about. It's not thought of too often, but it is an important source of powers and protections for the states. So when we talk about the relationship between the federal government and that of the states, we refer to that structure as federalism. And we've talked about federalism lots of times.
But maybe we could really call that vertical federalism.
Okay.
Chapter 4: How does California AG Rob Bonta address federal overreach?
What do you mean by that? Well, that's because it's the federal government sort of how it relates to each one of the 50 states. But the states have relationships with one another. And sections one and two of article four are actually about the relationships among the states. And we can talk about that as horizontal federalism. Got it. Yeah. So why don't we start with section one?
Roman, why don't you read section one?
OK. Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof.
All right, that's a mouthful. So Section 1 is also known as the Full Faith and Credit Clause. And the Full Faith and Credit Clause embodies the idea that we need some kind of interstate cooperation in our system for the system to work. And the basic idea with the Full Faith and Credit Clause is that the states are supposed to respect the laws, records, and court decisions of other states.
That's the general idea.
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Chapter 5: What are some examples of federal overreach discussed in the episode?
Yeah, yeah.
Well, what it means in the specifics, however, is that if, for instance, you have a state court issue a judgment in your favor, let's say you win a case and the court awards you damages or money, you can ask a court in another state to enforce or respect that judgment. Let's say if the person who owes you money now has left the state and taken their assets with them.
The defendant doesn't get another chance to redo the case just because the dispute has essentially traveled to another state. Got it. That's really what the clause is about. Yeah. Most of the time, though, the full faith and credit clause is mostly overlooked. It doesn't feel like a hot topic, right?
Yeah, well, I think it's sort of metabolized into our way of being. Like, I don't think that I'd have different rights in different states necessarily all that much. I just think of the United States as one big thing, which is kind of how this works in practice.
Chapter 6: How does California's stance on immigration enforcement reflect its legal principles?
That's the way it's supposed to work in theory. But there are a few areas where there have been some important questions. And actually, one of them is marriage. So in 2015, the Supreme Court decided the case of Obergefell versus Hodges. And that's the case in which the Supreme Court recognized a constitutionally protected right to same-sex marriage.
And so there had been a longstanding constitutionally protected right to marriage before the Obergefell case, but it wasn't until 2015 that the Supreme Court formally recognized that this right also included the LGBTQ community. So that raises the question, well, what was life like before Obergefell? It's hard to remember. Yeah, it's hard to remember.
But the answer is that whether or not any state recognized same-sex marriages, whether the marriage occurred within the state or without the state was often up to question and left up to individual states. So some states, if you recall these before times, some states recognize same-sex marriage, but other states didn't.
And in fact, they went further and either passed laws or changed even their state constitutions to say that marriage was only between a man and a woman within that state. But of course, at the same time, there was a growing movement for marriage equality to recognize that same-sex couples had rights to marriage.
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.
I do remember that.
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Chapter 7: What implications does the Obergefell v. Hodges ruling have on state laws?
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.
So how could Congress do that?
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.
So it's actually not just saying, hey, states, you have to respect other states' judgments. It's actually a source of federal legislative authority. So with DOMA, it becomes legal for states to refuse to recognize otherwise legal same-sex marriages. And while many states legalized discrimination against same-sex marriages, other states also began to recognize rights.
So Massachusetts became the first state to legalize same-sex marriage in 2004, and that's 11 years before the Obergefell decision in the Supreme Court. And many states followed, but many states did not. And then the Supreme Court did decide the case in 2015. There, the Supreme Court said that same-sex couples have a fundamental right to marry in all states.
So what is the effect of Obergefell and why should we care about this anymore now that that's sort of settled?
OK, well, on the one hand, the Supreme Court case does basically invalidate every state law that refused to recognize same sex marriage. Yeah. After the Obergefell decision, every state has to recognize the right to same sex marriage because of the Supreme Court's decision. It's constitutionalized this particular right to marry. And Obergefell also invalidates DOMA, the federal law.
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Chapter 8: How are states preparing for potential conflicts with federal policies in the future?
That law also is no longer a good law because why? It interferes with a constitutionally protected right to marry. But instead of just saying, this is like, well, it's interesting background material, who cares? Well, in 2022, the Supreme Court decided to unrecognize the constitutionally protected right to an abortion in Dobbs versus Jackson Women's Health Organization.
And that case overturned the right that was first recognized in Roe in 1973. And even though abortion might seem to be pretty distinct from marriage, and of course it is a different topic, it was not a different topic for Justice Thomas. Justice Thomas joined the majority opinion in the Dobbs case, but he also wrote a separate opinion because he had more to say.
And essentially his more to say was, look, if we're overturning the right to an abortion, which I think is a good idea, that's his thinking, we might also reconsider some rights based on the same interpretation that the court issues today. And he calls out specifically Obergefell versus Hodges. Like, maybe we should think about overturning that case.
So his opinion set off alarms, as you can imagine. And so the idea here is, look, if Justice Thomas can just convince four other justices that he's right, then presumably that right might be in question.
So you said alarm bells went off, but like, did anything actually come of that?
Well, in 2022, this was the Biden administration. President Biden signed the Respect for Marriage Act, or RFMA.
Okay. So what does RFMA do?
So RFMA formally repeals the Defense of Marriage Act from 1996, right? But it also goes further. One section of RFMA, this is the federal law, requires all states to give what the law calls full faith and credit to marriages, including same-sex marriages, which it identifies specifically, if they are lawfully performed within a state. So RFMA doesn't require a state to license same-sex marriages.
In other words, it doesn't require a state that hadn't done that before to do it. But as long as there is one state in the United States that does license same-sex marriages, the effect of RFMA, this federal law, means that those marriages should be respected in the other 49. And remember, marriage as a legal idea is really important.
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