Overview of Full Faith and Credit Clause

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Article IV, Section 1:

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.

The Constitution’s federalist structure allows each state to maintain its own government.1 This structure creates a risk that multiple states will exercise their powers over the same issue or dispute, leading to confusion and uncertainty.2 The Constitution’s Full Faith and Credit Clause mitigates that risk by adjusting the states’ interrelationships.3 The Clause requires each state to give “Full Faith and Credit” to “the public Acts” of “every other State,” such as other states’ statutes.4 The Clause also requires states to give “Full Faith and Credit” to the “Records[ ] and judicial Proceedings of every other State.” 5

The Supreme Court’s interpretation of the Clause has shifted over time.6 The Court has settled on a doctrinal framework that treats out-of-state court judgments differently from out-of-state laws.7 Whereas the modern Court generally requires states to give out-of-state judgments conclusive effect, states have more freedom to apply their own laws in their own courts, so long as they do not close their courts completely to claims based on other states’ laws.8

The Clause also authorizes Congress to enact “general Laws” that “prescribe the Manner in which [states'] Acts, Records and Proceedings shall be proved, and the Effect thereof.” 9 Congress has invoked this authority several times, such as to require federal and territorial courts to apply the same full faith and credit principles as state courts.10 However, the Supreme Court has not yet considered where the outer boundaries of that power lie.11

Litigants frequently ask state judges to enforce judgments entered by other states’ courts, such as judgments for monetary damages.12 Those judges must decide whether to honor that judgment—and, if so, what legal effect the judgment will have. In addition, the Full Faith and Credit Clause requires states to recognize other states’ “public Acts,” such as statutes.13 This language has raised questions regarding how state courts must treat other states’ laws. Besides the question of which state’s laws a court must apply when two statutes conflict, the Court has also considered whether a state court must entertain causes of action based on other states’ laws. The Court has interpreted the Clause to require states to open their courts to claims based on other states’ laws under various circumstances.14

Whereas the Full Faith and Credit Clause’s first sentence mandates that “Full Faith and Credit . . . be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” its second sentence authorizes Congress to “prescribe . . . the Effect” of “such Acts, Records, and Proceedings.” 15 The relationship between these two sentences raises interpretive questions. Because the first sentence already requires states to give out-of-state acts and proceedings full faith and credit, the Framers’ reasons for authorizing Congress to specify the effect of those acts and proceedings are unclear.16 Nor is it clear whether the Clause’s second sentence empowers Congress to enact legislation allowing states to refuse to give effect to particular categories of acts, records, and proceedings.17 Congress has seldom invoked its legislative authority under the Clause and thus has rarely tested that power’s potential limits.18 As a result, the scope of Congress’s powers under the Clause remains unsettled.19

1: See Intro.7.3 Federalism and the Constitution. See also, e.g., Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n, 455 U.S. 691, 703–04 (1982) ( “Ours is a union of States, each having its own judicial system capable of adjudicating the rights and responsibilities of the parties brought before it.” ).
2: See, e.g., Underwriters Nat’l Assurance, 455 U.S. at 704 ( “[T]here is always a risk that two or more States will exercise their power over the same case or controversy, with the uncertainty, confusion, and delay that necessarily accompany relitigation of the same issue.” ).
3: See, e.g., V.L. v. E.L., 577 U.S. 404, 407 (2016) (per curiam) (explaining that the Full Faith and Credit Clause “alter[s] the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation” ) (quoting Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268, 277 (1935)).
4: U.S. Const. art. IV, § 1. See also, e.g., Franchise Tax Bd. v. Hyatt, No. 14-1175, slip op. at 4 (U.S. Apr. 19, 2016) ( “A statute is a ‘public Act’ within the meaning of the Full Faith and Credit Clause.” ).
5: U.S. Const. art. IV, § 1.
6: See generally ArtIV.S1.3.2 Modern Doctrine on Full Faith and Credit Clause.
7: See, e.g., Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494 (2003) ( “[O]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.” ) (quoting Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998)).
8: See, e.g., id. ( “Whereas the full faith and credit command ‘is exacting’ with respect to '[a] final judgment . . . rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment,’ it is less demanding with respect to choice of laws. We have held that the Full Faith and Credit Clause does not compel ‘a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.’” ) (internal citations omitted; alterations in original). Compare ArtIV.S1.3.1 Early Precedent on Full Faith and Credit Clause and ArtIV.S1.3.2 Modern Doctrine on Full Faith and Credit Clause, with ArtIV.S1.4.1 Early Doctrine on State Law on Full Faith and Credit Clause and ArtIV.S1.4.2 Modern Doctrine on State Law on Full Faith and Credit Clause.
9: U.S. Const. art. IV, § 1.
10: See generally ArtIV.S1.5.1 Generally Applicable Federal Law on Full Faith and Credit Clause to ArtIV.S1.5.2 Specifically Applicable Federal Law on Full Faith and Credit Clause.
11: See generally ArtIV.S1.5.1 Generally Applicable Federal Law on Full Faith and Credit Clause to ArtIV.S1.5.2 Specifically Applicable Federal Law on Full Faith and Credit Clause.
12: See, e.g., 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4467 (5th ed. 2019) (describing “enforcement of money judgments” as “[t]he most familiar application” of full faith and credit principles).
13: U.S. Const. art. IV, § 1. See also Franchise Tax Bd. v. Hyatt, No. 14-1175, slip op. at 4 (U.S. Apr. 19, 2016) ( “A statute is a ‘public Act’ within the meaning of the Full Faith and Credit Clause.” ).
14: See ArtIV.S1.4.2 Modern Doctrine on State Law on Full Faith and Credit Clause.
15: U.S. Const. art. IV, § 1.
16: See, e.g., Jeffrey M. Schmitt, A Historical Reassessment of Full Faith and Credit, 20 Geo. Mason L. Rev. 485, 485 (2013) ( “The Constitution commands that ‘Full Faith and Credit shall be given’ to state acts, records, and judgments. Although this clause appears to create a self-executing constitutional directive, the very next sentence provides that Congress ‘may’ prescribe the manner in which state acts and judgments ‘shall be proved, and the Effect thereof.’ Paradoxically, the Full Faith and Credit Clause thus arguably seems to give Congress the power to nullify the command that full faith and credit be given. Any plausible interpretation of the Clause must reconcile this apparent conflict.” ) (footnotes omitted).
17: See, e.g., Charles M. Yablon, Madison’s Full Faith and Credit Clause: A Historical Analysis, 33 Cardozo L. Rev. 125, 126 (2011) ( “The apparent inconsistency in the language of the Full Faith and Credit Clause becomes a concrete legal issue . . . if Congress chooses to pass a law that appears to violate the mandate of the first sentence of the Clause.” ).
18: See Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 2005 (1997) (describing Congress’s power under the Clause’s second sentence as “untested and practically unexercised” ).
19: See, e.g., Jeffrey M. Schmitt, A Historical Reassessment of Full Faith and Credit, 20 Geo. Mason L. Rev. 485, 485 (2013) ( “[T]he Court has not yet ruled on the second portion of the Clause—that is, it has not addressed the contours of Congress’s full faith and credit power.” ).