An upcoming Constitutional Crisis… Same-sex Marriage.

I had an exam in a State and Local Government class where we were asked about the “Full Faith and Credit Clause” of the United States Constitution.  I see a very big crisis coming in the future with Article IV here, very soon…  What do you think?

Article IV of the Constitution specifically states:

“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.”

This lends to the fact that, constitutionally speaking, the several States are required to respect and acknowledge the laws, records and licenses of the same; meaning that one State has a record or a law of one form, the States are commanded by the Constitution to guarantee the reciprocity of it. This is the basis of which Driver Licenses are accepted within the 50 States: an instrument of which is the Driver License Compact: by which a driver licensed in State A, but operating in; and convicted of a driving offense in State B, State A is expected to penalize the driver for said offense, and vice-versa.

This having been stated, the same-sex marriage standpoint creates an interesting dichotomy the several states that have legalized it; and those who have specifically banned it – particularly at a state Constitution level. As previously stated, and even affirmed using the Driver License Compact as a precedent, the several States are required to respect and acknowledge the records, licenses and acts of others. However, this could indeed present a serious constitutional crisis. Going back to the Driver License Compact, an example of what is not enforceable under this law by State A are laws that State B may have (such as Reckless Driving), however State B has no such regulation. Under this Compact, State A is required to take no action against the driver in his home territory, because State A does not have such a law, while State B does. The same-sex marriage argument isn’t the same case. Indeed, far from it. The argument presents two entirely incompatible systems of law that can’t operate with each other under the Full Faith and Credit Clause; or, even THREE, if one counts the legalization of the so-called “civil union.”

Using the example of State A and State B again, State A has passed a State law that affirms the right of two consenting adults ability to enjoy the legal benefits of marriage, regardless of sex or gender. However, State B has a Constitutional amendment specifically granting the State’s recognition of a married couple to be one man and one woman; and that any other union between adults cannot be recognized as “marriage,” and that they enjoy no rights at the State-level of the same. Because we have two State-level mandates that conflict with each other, which of these trumps the other under the Full Faith and Credit Clause if a married same-sex couple were to move to a State that bans it? Does the ban trump the affirmation? Does the affirmation trump the ban? I would argue that so far that the Full Faith and Credit Clause has had little impact on judicial precedent, I believe it’s because the spirit of the law has yet to be challenged in such a way; and that the United States Supreme Court’s lack of requirement of judicial precedent to resolve a case are the two largest factors.

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