Assignment for Next Class
• Full Faith & Credit Clause and 27 USC § 1738 (CB
489-91)
• Notes on the next slide
• Fauntleroy v Lum (CB504-9)
• Baker v GM (CB521-35)
• DOMA materials (Handout)
• Questions on the following slides
Notes on the Full Faith & Credit Clause
• The word “Acts” in the Full Faith & Credit Clause and 17 USC § 1738
means legislative acts, such as statutes. It has also been interpreted
to include state common law. The implications of Full, Faith & Credit
with respect to Acts will be discussed in the class devoted to
constitutional constraints on choice of law.
• The word “Records” in the Full Faith & Credit Clause and 17 USC §
1738 means documents produced by the executive branch, such as
birth and marriage certificates. The Supreme Court has never
decided a case involving records, but state courts have. For example,
in 2002, the Kansas Supreme Court considered the effect of an
amended birth certificate issued to a male-to-female transsexual
indicating that s/he was female. It decided that the Full Faith &
Credit Clause required it to treat the certificate as evidence that the
certificate was issued, but that Kansas was not barred from
determining whether Gardiner was male or female under Kansas law.
Questions to Think About I
• Full Faith & Credit Clause & 28 USC U.S.C. § 1738
– Which part of 28 USC U.S.C. § 1738 “prescribes the Manner in which such Acts,
Records, and Proceedings shall be proved”?
– Which part of 28 USC U.S.C. § 1738 “prescribes …. the Effect thereof”?
– Is 28 USC U.S.C. § 1738 a “general law”?
– The FFCC-SOA (Full Faith and Credit for Child Support Orders Act) is a federal
statute which requires a state to enforce child support orders issued by another
state. The PKPA (Parental Kidnapping Prevention Act) is a federal law requiring
states to enforce custody orders issued by another states. Are the FFCC-SOA
and PKPA “general laws”?
– Is DOMA a “general law”?
– Should states be required to give the same deference to other states’ records
as they do to other states’ judgments? Are you convinced by Whitten’s
arguments on the subject?
Questions to Think About II: Fauntleroy v Lum
• Is this case based on the Full Faith & Credit Clause of the Constitution or on 28 USC
U.S.C. § 1738?
– Does it matter for the constitutionality of DOMA?
• Why do you think the parties arbitrated their dispute?
• Why do you think the plaintiff “brought suit .. upon the award” in Missouri rather
than Mississippi? [Note that, at this time, in order to enforce an arbitration award,
it was necessary to reduce to bring a suit to convert the arbitration award into a
court judgment?
• What law applied to the suit in Missouri to enforce the arbitration award?
• Why did the plaintiff sue to enforce the Missouri judgment in Mississippi?
• Under Fauntleroy v Lum, which of the following would be valid reasons for
Mississippi not to enforce the Missouri judgment?
– The Missouri court did not have jurisdiction. Does it matter whether defendant
contested or could have contested Missouri’s jurisdiction?
– The Missouri court applied the wrong law to the dispute (e.g. Mississippi law
rather than Missouri law or vice versa)
– The Missouri court misapplied the law it chose (perhaps erroneously) to apply
– The Missouri judgment violates a strong Mississippi public policy
Questions to Think About III
• Baker v General Motors
– Whose opinion did you find most persuasive? Ginsburg’s? Scalia’s? Kennedy’s?
– Why is this case different from Fontleroy v Lum? That is, even if one thinks the
injunction issued by Michigan is bad policy, why aren’t other states required to
respect it, just as Mississippi was required to respect the judgment entered by
Missouri that it considered bad policy?
– What if, instead of objecting to Elwell’s appearance in Missouri, GM had sued
Elwell in Missouri court to enforce the Michigan injunction?
• Bishop v Oklahoma
– If DOMA does not affect civil unions, does that mean that Oklahoma must
recognize civil unions validity entered into in other states?
– If DOMA does not affect marriages validly entered into in foreign countries,
does that mean that Oklahoma must recognize them?
– If DOMA does not affect civil unions or foreign marriages, are there ways in
which such unions and marriages will be granted greater recognition than
same-sex marriages contracted in U.S. states which currently allow such
marriages?
Questions to Think About IV
• Miller-Jenkins
– Can you think of another way of avoiding the conflict between DOMA and the
PKPA?
– The FFCC-SOA (Full Faith and Credit for Child Support Orders Act of 1994) is a
federal statute which requires a state to enforce child support orders entered
into by another state. Suppose a lesbian couple is married, has kids, and
divorces in Massachusetts. Part of the divorce decree requires one woman to
pay child support. That parent moves to Texas and stops paying child support.
The custodial parent sues in Texas state court to collect child support. What
result?
Questions to Think About V
•
Kramer / Whitten / Rensberger
– Whose arguments did you find more convincing about Congress’s power to relieve
states of the obligations under the Full Faith & Credit Clause? Kramer or
Rensberger?
– Were you convinced by Whitten’s analysis of the history of the Full Faith & Credit
Clause?
– To what extent are the historical arguments made by Kramer and Rensberger
supported by Whitten’s analysis?
– How, if at all, should the historical evidence affect modern interpretation of the Full
Faith & Credit Clause?
• Kramer
– How would you argue that Congress’s power to legislate under the Full Faith &
Credit Clause is or should be at least as strong as its power to legislate under the
Commerce Clause?
– How would you argue that Congress’s power to legislate under the Full Faith &
Credit Clause is or should be weaker than its power under the Commerce Clause?
– In what way is the Full Faith & Credit Clause more like the Section 5 of the 14th
Amendment? In what way is it more like the Commerce Clause?
– Is Kramer correct that DOMA means that “no divorce decree, property settlement,
or adoption is safe”?
Questions to Think About VI
• Rensberger
– How does Rensberger’s analysis affect the discussion in
the prior class of the effect of a declaratory judgment in
Texas that a same-sex coupled married in Massachusetts
is not validly married?
– Is Rensberger correct that the Interstate Child Support
Act shows that Congress can create exceptions to states’
obligations to accord full faith and credit to judgments
from other states?