Steve Sanders on Full Faith and Credit and the Respect for Marriage Act

In my last post, I covered some potential federalism issues raised by the Respect for Marriage Act, which seems to protect same-sex marriage in the event the Supreme Court overrules Obergefell v. Hodges. Among other things, I cited the work of Prof. Steve Sanders of  Indiana University, a leading academic expert on same-sex marriage and the Full Faith and Credit Clause.

After reading my post, Steve indicated he largely agreed with my analysis, and sent me the following comment, which he has authorized me to reprint here. I have reprinted Steve’s comment unaltered, except for a couple clarifications I have put in brackets. Steve’s piece is in the blockquote. Everything else in the post is my own writing. Here is Steve’s comment:

The conventional scholarly wisdom is that the Article IV Full Faith and Credit Clause doesn’t, on its own, compel interstate recognition of marriages, because at the end of the day, a state’s definition of marriage is just an expression of statutory policy, and the Supreme Court has long said that FF&C does not mean states are obligated to defer to the policy ideas of other states.  I have pushed back on that conventional wisdom, as you noted [in my original post].  But what’s key is that the FF&CC also contains a grant of power to Congress to prescribe by statute the “effect” of one state’s “acts” in other states.

Is there some cost to federalism in the Respect for Marriage Act?  Sure.  But the FF&CC was intended as a unifying device, not a states-rights provision.  And as a policy matter, the cost is far outweighed by the chaos and injustice that would be caused by allowing one state to nullify another state’s existing legal marriage.  Aside from the appalling human costs, there are federalism implications to that as well.  The Respect for Marriage Act basically says, “You are required to give effect to a legal relationship validly created under another state’s law.  This is one country, one where people move around all the time.  You can’t treat their marriage license like a worthless piece of foreign currency.”

In his famous article on the Full Faith and Credit Clause