Full Faith and Credit: Past Due

Article IV, Section 1, of the U.S. Constitution, more commonly known as the Full Faith and Credit clause, consists of just two sentences: “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 effects thereof.”

Two lines: a bracingly absolute statement, followed by a qualifying statement that has historically acted the caveat when social progress in one state seems unacceptable to another. So while the Full Faith and Credit clause prohibits any state from rejecting the validity of a marriage performed in any other state, in the current social climate special dispensation is granted to ignore any state laws recognizing same-sex relationships, as was the case barely more than four decades ago regarding interracial marriages.

Contemporary public and legislative handling of same-sex relationships in the United States has spookily mirrored that of mixed-race relationships in the pre–civil rights era, with a high pitch of emotional volatility resulting in an indecisive rancor in our constitutional law. As with the Federal Marriage Amendment, the U.S. Congress never managed to pass one tidy nationwide law banning the marriage of interracial couples, despite three concerted attempts between 1871 and 1928. Instead, states passed their own laws aimed at curbing “miscegenation,” a term coined by journalists during the Civil War -- as whites increasingly became sympathetic to antislavery causes -- to hype the looming specter of racial impurity, which many deemed against God’s design for mankind and a certain ruin for the social fabric of the nation, a kind of fear-mongering right-wing static that sounds downright contemporary to gays today.

In the mid 20th century, 30 states maintained laws banning marriage between whites and blacks, with over half those laws restricting contracts between additional races. In the 21st century, 45 states have either a law or a constitutional amendment restricting marriage to a union between a man and a woman; 17 of those laws or amendments go a step further to ensure that no same-sex relationship of any kind may be recognized by the state. Then as now, rather than trusting voters to pass such laws on their strictly biased motives, supporters saddled legislation with titles insinuating that a core concept (race! marriage!) was under attack and needed defending: Virginia’s Racial Integrity Act, the Defense of Marriage Act, the Marriage Protection Act.