Full Faith and Credit Clause: Article IV, Section 1
Article IV, Section 1, of the Constitution provides, “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.” On its face, the Full Faith and Credit Clause affects the structure of American federalism and interstate relations in two fundamental ways. First, it requires each state within the union to give full faith and credit to the acts, records, and judicial proceedings of the other states. And second, it allows Congress to further effectuate the first clause by clarifying the manner in which out-of-state acts, records, and judicial proceedings are to be proven and the effect they are to be given.
The text of the clause suggests that states are obligated to give full effect to the official actions of other states. For example, if a person obtains a judgment of divorce in Nevada, the plain language of the Full Faith and Credit Clause seemingly requires all other states to recognize and effectuate the legal validity of this decree. But the practical reality is that while states regularly give legal effect to the acts, records, and judgments of other states when they are consistent with the policies and interests of the forum state, they retain substantial discretion to reject full faith and credit to these out-of-state actions when they conflict with the laws or public policy interests of the forum state. However, in Obergefell v. Hodges (2015), the Court held, albeit not on Full Faith and Credit grounds, “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.”
Contents
THE ORIGINS OF THE CLAUSE
Many view English common law as the genesis for the Full Faith and Credit Clause, finding the terms “faith” and “credit” to be terms of art developed as part of the discourse between English common law (secular) and ecclesiastical (religious) courts. Court decisions from the end of the sixteenth century reveal that some common law courts gave “faith and credit” to the decisions of ecclesiastical courts and allowed the decisions of these courts to govern disputes under common law. In some cases, the phrase “faith and credit” was used alone, while in others the phrase was modified as “entire faith and credit,” “full credit,” or “full faith.” Some scholars assert that when the modifier “full” or “entire” was used, the phrase meant that the judgment or records from another court would be not only admissible in the forum court but also conclusive as to the truth of the matter asserted.
Evidence suggests, however, that the complete phrase “full faith and credit” was not used until it was incorporated by the United States in the Articles of Confederation. On November 12, 1777, a clause reading, “That full faith and credit shall be given in each of these States to the Records, Acts, and Judicial Proceedings of the Court and Magistrates of every other State,” was adopted by the Continental Congress and included in the Articles of Confederation. Records indicate that this provision was approved without any debate. And although the Articles generally afforded the states substantial autonomy and independence, the Full Faith and Credit Clause was one provision where the states were constitutionally obligated to provide some level of cooperation and deference to the official actions of other states.
There are five reported cases addressing the Full Faith and Credit Clause under the Articles of Confederation between 1786 and 1788. In two of these cases, the forum court gave conclusive effect to judgments rendered by out-of-state courts. In the other three cases, the forum court ruled that it was not obligated to give conclusive effect to the extraterritorial judgment, based either on a finding that the out-of-state court lacked jurisdiction to render its initial judgment or that the Full Faith and Credit Clause required only evidentiary consideration, not conclusive effect, to be given to the other state’s judgment. Thus, from the inception of the clause, there was debate over its scope and substance. In fact, in addressing the clause as used in the Articles of Confederation, James Madison commented that its meaning was “extremely indeterminate” and of “little importance under any interpretation which it will bear.” The Court has however on various occasions held that a state must enforce final judgments by courts with authority over the subject and the persons involved. In V.L. v. E.L (2016), for example, the Court required Alabama to follow a Georgia court adoption decree to a same-sex couple.
Like many other provisions in the Articles of Confederation, the Full Faith and Credit Clause was readopted and included in the Constitution, taken from the last paragraph of Article IV of the Articles and placed in the first provision of Article IV of the Constitution. The members of the Constitutional Convention adopted the Articles’ version of the Clause, but made two fundamental modifications. First, the framers extended the clause to include nonjudicial “public” acts because they believed that the acts of state legislatures sometimes served similar purposes to acts of courts. And second, they gave Congress the power to prescribe the manner in which acts, records, and judicial proceedings could be proved and the effect thereof. This second provision was proposed by James Madison, who felt that it was necessary given the “nature of the Union.” Others, including Edmund Randolph of Virginia, disagreed with Madison’s proposal, claiming that it would allow Congress to impose future limitations on the power of the states, particularly with respect to their ability to consider the effect of out-of-state judgments.
As ratified in 1789, the literal language of the Full Faith and Credit Clause provides for a more hierarchical model of federalism. The first provision requires states to extend full faith and credit to the acts, records, and judicial proceedings of other states, thereby imposing a uniform standard on the states regarding the treatment of official actions of other states. And the second provision gives Congress the authority to further effectuate the manner in which states must receive and treat out-of-state acts, records, and judgments. Both of these provisions reflect a blueprint for hierarchy in federal-state relations, whereby the states are required to abide by a uniform limitation on their sovereignty in interstate legal disputes and the federal government reigns supreme when it comes to further regulation of this area of interstate relations.
THE MEANING OF FULL FAITH AND CREDIT
The Full Faith and Credit Clause, as with most other constitutional provisions, has been the subject of conflicting interpretations, and despite the seemingly clear language of the clause, there appears to be very little consensus regarding the scope and meaning of the text. Constitutional scholars and legal advocates have reviewed the records from English courts, the Continental Congress, and the Constitutional Convention in an effort to understand the original intent of the provision, but this has resulted in conflicting interpretations. These interpretations can be grouped into two general theories—compact theory and national theory.
Compact theory maintains that the Full Faith and Credit Clause was written with the intent of placing few restrictions on states in their consideration of extraterritorial acts, records, and proceedings. Despite the mandatory-sounding language of the clause, compact theorists claim that the words cannot be taken literally, but instead must be read within the historical context and logical intent of the framers. Viewed in this light, compact theory holds that the clause was never intended to remove the states’ discretion in deciding which law—their own or another state’s—to apply to legal disputes within their own borders. Under this theory, the clause requires states only to admit the relevant acts, records, and judicial proceedings of other states into the evidentiary record of a given legal dispute, and to consider such evidence along with other forms of evidence presented. Compact theorists claim that English common law, the debates among the constitutional framers, and judicial interpretations all suggest that the clause was designed to require only evidentiary consideration of other states’ official actions, and not for making extraterritorial acts, records, and judicial proceedings conclusions of law.
National theorists, on the other hand, promote a more literal interpretation of the clause. Under this theory, the clause was designed to form one union out of several independent states by providing a clear national command regarding the manner in which states must interact with each other in interstate legal disputes. National theorists claim that, in most situations, the Full Faith and Credit Clause not only requires states to admit the acts, records, and judgments of other states into evidence, but also requires states to afford these official actions full legal effect as well.
CONGRESSIONAL AND JUDICIAL CONSIDERATION OF THE CLAUSE
Following the ratification of the Constitution, the First Congress did not waste any time exercising its power under the Full Faith and Credit Clause. On February 1, 1790, Congress passed legislation detailing the procedure for authenticating records and judicial proceedings and declaring that, properly authenticated, these records and proceedings would have the same “faith and credit” given to them in every court within the United States, as they have in their originating court. Congress, however, did not include “public acts” in the effects clause of this legislation, and for a considerable time this led to controversy as to whether out-of-state legislative acts were to be afforded full faith and credit. Ultimately, Congress resolved this conflict in 1948 when it amended the 1790 statute to include “acts” in the effects provision (“1948 Act”). Accordingly, under 28 U.S. Code, Section 1738, “Acts, records and judicial proceedings shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory, or Possession from which they are taken.”
Other examples of congressional action under Article IV include the 1980 Parental Kidnapping Prevention Act, which requires each state to enforce child custody determinations made by other states; the 1994 Full Faith and Credit for Child Support Orders Act, which requires states to enforce child support orders made by the child’s home state; and the 1996 Defense of Marriage Act, which provides an exemption to states under the Full Faith and Credit Clause allowing them to refuse recognition to same-sex marriages solemnized in other states.
| 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. |
But despite this legislation, Congress has remained silent on many other areas of law potentially affected by the Full Faith and Credit Clause. More critically, both state and federal courts have regarded the literal language of the Full Faith and Credit Clause and the 1948 Act to be unmanageable and their resulting effects to be “absurd.”
With regard to “public acts,” the U.S. Supreme Court ruled in Alaska Packers Association v. Industrial Accident Commission (1935) that “a rigid and literal enforcement of the full faith and credit clause [for acts] . . . would lead to the absurd result that, whenever a conflict arises, the statute of each state must be enforced in the courts of the other, but cannot in its own.” Given the potential for such illogical results, state courts have not strictly abided by the literal mandates of the Full Faith and Credit Clause or the 1948 Act in cases where a conflict exists between the law of the forum state and that of another state. Instead, states have independently developed elaborate and extraconstitutional rules for resolving interstate conflicts of law. These rules, known as conflict-of-law or choice-of-law rules, vary from state to state, and may be applied differently depending on the nature of the legal dispute (tort law, domestic relations, insurance law, etc.). But overall, these rules are a series of doctrines and laws adopted individually by the states that have largely displaced the Full Faith and Credit Clause and the 1948 Act as the governing principles for many interstate conflicts regarding “public acts.”
A similar development occurred with respect to the interstate treatment of records and judgments, as states have applied a less-than-literal application of the clause and the 1948 Act to these extraterritorial actions as well. Instead, under modern theories of full faith and credit, the forum state’s public policy interests have become a central factor for determining whether an out-of-state act, record, or judgment will be effectuated. And in cases where the forum state finds that the recognition of an out-of-state record or judgment, such as a marriage certificate or divorce decree, would violate the forum state’s public policy, courts have denied full faith and credit to these records and proceedings. This approach to full faith and credit generally has been reinforced by federal courts. As Supreme Court Justice Stanley Reed concluded in Griffin v. McCoach (1941), “A state is not required to enforce a law obnoxious to its policy.”
This so-called public policy exception to the Full Faith and Credit Clause is not unique to interstate relations in the United States, but was a legal doctrine originally developed in private international law, a body of law dealing with the rights and obligations of individuals in international transactions. Within this area of law, countries are permitted to refuse recognition to the official actions or decrees of another country in private disputes where the extraterritorial action or decree runs afoul of the forum country’s policy interests.
THE PRACTICAL EFFECT OF FULL FAITH AND CREDIT
The frequent disregard for and inexact application of the Full Faith and Credit Clause has led some legal scholars to suggest that, in conflict-of-law disputes, the Full Faith and Credit Clause applies only when there is a “compelling need” to use it. As a result, states have enjoyed a considerable amount of discretion in deciding whether to enforce the official action of another state, under a strict interpretation and application of the Full Faith and Credit Clause, or whether to deny full faith and credit because the forum state’s interests are better served by applying its own law or public policy. This reality has led some scholars to observe that the Full Faith and Credit Clause means “almost nothing” and that state courts can easily avoid what little it does mean.
In the end, the general disregard for the Full Faith and Credit Clause has resulted in a model of federalism that is far less hierarchical in nature than the text of Article IV would suggest. And those concerned with the expansion of federal authority over the states, which has occurred under the Necessary and Proper, Supremacy, and Commerce Clauses, find an inverted flow of authority under the Full Faith and Credit Clause, where state sovereignty has in most cases reigned supreme.
| BIBLIOGRAPHY:
Lea Brilmayer, Conflict of Laws: Foundations and Future Directions (Boston: Little, Brown, 1991); David E. Engdahl, “The Classic Rule of Faith and Credit,” Yale Law Journal 118 (2009): 1584-1954; Robert H. Jackson, Full Faith and Credit: The Lawyer’s Clause of the Constitution (New York: Columbia University Press, 1945); Douglas Laycock, “Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law,” Columbia Law Review 92 (1992): 249–337; and Russell J. Weintraub, “Who’s Afraid of Constitutional Limitations on Choice of Law?” Hofstra Law Review 10 (1981): 17. |
Stephen L. Schechter John P. Feldmeier
Last updated: June 2018
SEE ALSO: Citizenship