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.

Congress has also passed full faith and credit statutes governing specific categories of acts, records, and proceedings.1 For example, the Parental Kidnapping Prevention Act (PKPA) extends full faith and credit to child custody determinations.2 Section 40221(a) of the Violent Crime Control and Law Enforcement Act of 1994 requires states to give certain out-of-state protection orders full faith and credit.3

, § 40221(a), 108 Stat. 1796, 1926 (1994) (codified as amended at 18 U.S.C. § 2265). And the Full Faith and Credit for Child Support Orders Act governs the enforcement of out-of-state child support orders.4

Notably, each of these statutes requires states to give full faith and credit to particular acts, records, or proceedings. Congress has rarely enacted legislation purporting to allow states to not honor out-of-state acts or judgments.5 For instance, Section 2(a) of the Defense of Marriage Act provided that “no State, territory, or possession of the United States, or Indian tribe” would “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.” 6

, § 2(a), 110 Stat. 2419 (1996) (codified at 28 U.S.C. § 1738C). Scholars debated whether the Full Faith and Credit Clause authorized Congress to allow states to disregard out-of-state marriages in this fashion.7 The Supreme Court mooted this debate when it held in Obergefell v. Hodges “that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” 8 Because the Obergefell Court based its ruling on the Fourteenth Amendment, the Court left questions regarding Congress’s power under the Full Faith and Credit Clause unanswered.9 Thus, the boundaries of Congress’s authority to prescribe the effect of state acts, records, and proceedings under the Clause remain unsettled.10

Footnotes

1

See, e.g., 22 U.S.C. § 9003(g) ( “Full faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the [Hague] Convention, in an action brought under [the International Child Abduction Remedies Act].” ); 25 U.S.C. § 1911(d) ( “The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.” ).

2

Pub. L. No. 96-611, §§ 6–10, 94 Stat. 3566 (1980) (codified as amended at 28 U.S.C. § 1738A). See also Thompson v. Thompson, 484 U.S. 174, 180 (1988) ( “At the time Congress passed the PKPA, custody orders held a peculiar status under the full faith and credit doctrine . . . The anomaly traces to the fact that custody orders characteristically are subject to modification as required by the best interests of the child. As a consequence, some courts doubted whether custody orders were sufficiently ‘final’ to trigger full faith and credit requirements, and this Court had declined expressly to settle the question. Even if custody orders were subject to full faith and credit requirements, the Full Faith and Credit Clause obliges States only to accord the same force to judgments as would be accorded by the courts of the State in which the judgment was entered. Because courts entering custody orders generally retain the power to modify them, courts in other States were no less entitled to change the terms of custody according to their own views of the child’s best interest.” ) (internal citations omitted).

3

Pub. L. No.

103-322

, § 40221(a), 108 Stat. 1796, 1926 (1994) (codified as amended at 18 U.S.C. § 2265).

4

Pub. L. No.

103-383

, 108 Stat. 4063 (1994) (codified as amended at 28 U.S.C. § 1738B).

5

See, e.g., Charles M. Yablon, Madison’s Full Faith and Credit Clause: A Historical Analysis, 33 Cardozo L. Rev. 125, 135–36 (2011) (observing that “[t]he republic had been in existence for over 200 years before Congress” passed legislation purporting to “abrogate[ ] the full faith and credit mandate” ).

6

See Pub. L. No.

104-199

, § 2(a), 110 Stat. 2419 (1996) (codified at 28 U.S.C. § 1738C).

7

Compare, e.g., Ralph U. Whitten, Original Understanding, 32 Creighton L. Rev. 255, 391 (1998) (arguing that Congress has “broad power to create statutes like DOMA under the Effects Clause” ), with, e.g., 142 Cong. Rec. S5932 (daily ed. June 6, 1996) (letter from Professor Laurence H. Tribe to Sen. Edward M. Kennedy) (arguing that DOMA § 2(a) was “plainly unconstitutional” because “the congressional power to ‘prescribe . . . the effect’ of sister-state acts, records, and proceedings, within the context of the Full Faith and Credit Clause, includes no congressional power to prescribe that some acts, records and proceedings that would otherwise be entitled to full faith and credit . . . shall instead . . . be entitled to no faith or credit at all” ) (first ellipses in original).

8

576 U.S. 644, 681 (2015). See generally Amdt14.S1.8.13.1 Overview of Fundamental Rights (analyzing Obergefell).

9

See Symeon C. Symeonides, Choice of Law in the American Courts in 2015: Twenty-Ninth Annual Survey, 64 Am. J. Comp. L. 221, 294 (2016).

10

See 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.” ); Mark D. Rosen, Congress’s Primary Role in Determining What Full Faith and Credit Requires: An Additional Argument, 41 Cal. W. Int’l L.J. 7, 11 (2010) ( “As to precedent regarding congressional power to reduce the credit that . . . must be given to another state’s laws or judgments, all we have are equivocal and somewhat contradictory statements by less than a majority of the Court.” ). Compare Thomas v. Wash. Gas Light Co., 448 U.S. 261, 272 n.18 (1980) (plurality opinion) ( “[T]here is at least some question whether Congress may cut back on the measure of faith and credit required by a decision of this Court.” ), with Yarborough v. Yarborough, 290 U.S. 202, 215 n.2 (1933) (Stone, J., dissenting) (arguing that “[t]he mandatory force of the full faith and credit clause as defined by this Court may be, in some degree not yet fully defined, . . . contracted by Congress.” ).