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Full Faith And Credit

detail of demonstrators' sign reading America Is Ready For The Freedom To Marry
photo by Elvert Barnes

Nearly three years ago, the Supreme Court struck down the Defense of Marriage Act with respect to the federal government in United States v. Windsor.

The decision was a major milestone for same-sex marriage rights, but the decision’s narrow basis left lingering questions. If a couple legally married under state law, Windsor meant they were married for federal purposes. But did states that had not instituted same-sex marriage, or those that had prohibited it, have an obligation to recognize such marriages performed elsewhere? The high court did not say.

Nor did it answer the question two years later, at least not directly, in Obergefell v. Hodges. The court held in a 5-4 decision that same-sex couples had a fundamental right to marriage, a finding that enraged the court’s four conservative justices, including the late Antonin Scalia, even though some of them claimed not to feel particularly strongly about same-sex marriage itself. The Obergefell decision struck down state laws prohibiting same-sex marriage, which rendered moot the question of whether states that rejected the practice had to recognize marriages held in states that allowed it.

But what would have happened if swing justice Anthony Kennedy had swung the other way?

A recent case strongly hints that nationwide same-sex marriage would still have arrived relatively soon thereafter. Some states could have, perhaps, clung to the decision not to perform such ceremonies for a time, but every state would have been required to recognize existing marriages under the Constitution’s full faith and credit clause.

How this scenario might have looked becomes clear when considering V.L. v. E.L., a case concerning adoption and visitation rights for the children of an unmarried lesbian couple. The women, identified only by their initials, are Alabama residents who were in a relationship for 17 years; during that period, they could not have wed in their state.

During the course of their relationship, E.L. had three biological children via artificial insemination. She and her partner established temporary residency in Georgia in order for V.L. to become the children’s adopted parent with E.L.’s consent. They eventually returned to their home in Alabama. When the couple’s relationship ended, V.L. filed suit in Alabama asking for visitation rights for the children, citing the Georgia adoption. E.L.’s lawyers countered with a variety of arguments, one of which was that the same-sex adoption violated Alabama’s “public policy” at the time, prohibiting the recognition of domestic rights for same-sex partners.

The Supreme Court of Alabama, which has a history of attempting to ignore rulings it doesn’t like where same-sex couples are concerned, held that Alabama courts were not obliged to recognize the Georgia adoption.

Under most circumstances, it has been long-established that the full faith and credit clause requires states to respect judicial acts performed in other states – judicial acts such as adoptions, divorces and marriages, for instance. The Alabama court attempted to circumvent this by claiming that the Georgia court shouldn’t have allowed the adoption under its own rules, so the decision was not binding.

The Supreme Court justices summarily reversed the Alabama Supreme Court’s decision, after deciding they did not need to hear arguments in the case. The high court did not have anything particular to say about the state of adoption for same-sex couples in its reasoning. Instead, the court made clear that a state cannot simply ignore the full faith and credit clause just because it disagrees with the other state’s judicial act. The decision was unanimous.

Note that the recent Alabama case did not draw any dissent at all from the court’s conservatives, the same ones who less than a year ago were apoplectic over Obergefell. It stands to reason that if they believe Alabama must recognize Georgia’s domestic-relations court orders affecting same-sex couples, it would have had to recognize such couple’s marriages, legally conducted in neighboring states. So, as many had long expected, the country would have eventually gotten to the same place regarding same-sex marriage – if not through Obergefell, then possibly through a case similar to this one that forced the issue through the full faith and credit clause.

I am happy the Supreme Court vindicated the rights of all couples to marry in their home states, counties and towns last year. But I was always pretty sure it would have eventually happened anyway. It has taken less than a year to see how the process might have played out.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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