Marriage Licenses, Concealed Gun Licenses, and the Full Faith and Credit Clause

Although states are required to recognize divorces and adoptions from other states, the Supreme Court has never ruled that states are required to recognized marriages.
 
On Wednesday the Senate narrowly defeated a proposed amendment to the Defense Appropriations Bill, under which people who had licenses from their home state allowing them to carry concealed weapons would be allowed to carry concealed weapons everywhere in the U.S., including in states that don’t authorize carrying concealed weapons and in states whose qualifications for obtaining such a license they might not be able to meet. The main argument against the amendment was that states should be allowed to establish their own policy on who can carry concealed weapons - or whether anybody should enjoy the right to do so - and giving nationwide effect to any particular state’s licenses would thus invade the right of each state to decide what was necessary to preserve public order in its own jurisdiction.

It struck me that the debate on this never mentioned the Full Faith and Credit Clause of the U.S. Constitution, Art. IV, Sec. 1, which provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Why did nobody argue that the proposed amendment was unnecessary because the FFCC already requires states to honor concealed weapons licenses issued by other states?

This question occurred to me because of the FFCC frenzy over the recognition of same-sex marriages that led to the enactment in 1996 of the federal Defense of Marriage Act. At the time, it was argued, Congress needed to pass what became Section 2 of DOMA because Hawaii was on the verge of allowing same-sex couples to marry.  Because Hawaii had no residency requirement for marriage, same-sex couples from all over the country could flock to Hawaii, marry, and then demand that their home states recognize their marriage under the FFCC. Proponents of DOMA argued that its enactment was necessary in order to let each state decide whether it wanted to recognize such marriages.

In both cases, we are talking about a license issued by the state after some clerical-level state employee determines that somebody (or a couple) meets the requirements specified for the license. In both cases, there are statutes and regulations that set out the qualifications. After a license is issued, a copy of it is on file in some government office (or more likely, these days, retained as an electronic record in a state database). These statutes and regulations are probably "public acts," and the filed licenses are undoubtedly "public records." In neither case - the issuance of a concealed weapon license or the issuance of a marriage license - is a judge involved, so I guess neither qualifies as a "judicial Proceeding."  (When a judge officiates at a civil wedding ceremony, that is not a formal court proceeding.)

I think the analogy between the two kinds of licenses is close enough to raise the question.

Perhaps the best answer is that the gun debate illuminates the ignorance that was rampant during the marriage debate.

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My own research led me to write in a law review article more than a decade ago that the FFCC does not compel marriage recognition by the states, because the marriage itself is not a public Act, a public record, or a judicial Proceeding. The case law on marriage recognition suggests that it is a matter of comity, not of compulsion under the FFCC, and that states have always been free to refuse to recognize marriages that could not have been performed in their own jurisdiction if they concluded that recognizing such marriages would be inconsistent with their state’s public policies, as articulated in statutes, regulations, and state judicial opinions.

Those who argued that Sec. 2 of DOMA, which provides that states are not required to recognize same-sex marriages from other states, was necessary to protect states from being compelled to recognize such marriages, were just plain wrong. In its FFCC jurisprudence, the Supreme Court has never ruled that states are required to recognize marriages from other states. They are required to recognize divorces and adoptions from other states, because in each of those instances there is a "judicial Proceeding"; that is, a divorce or an adoption results from a court order based on a judgement being exercised by a duly authorized judicial officer, so the FFCC literally applies. This has been dramatically confirmed recently by state appellate decisions in Florida and Louisiana holding that adoptions by same-sex couples that were judicially approved in other jurisdictions would be recognized pursuant to the FFCC, regardless of the fact that neither Florida (which bans all adoptions by gay people) nor Louisiana allows same-sex couples to adopt children within their states.

And that, by analogy, explains why in the absence of the proposed gun amendment, states are free to ignore or refuse to recognize permits to carry concealed weapons issued by other states. A permit or license does not come within the FFCC. The permit or license is not a "public Act," a "public record" or a "judicial Proceeding" as those terms are used in the FFCC.  My license to practice law in New York does not entitle me to practice law in New Jersey by virtue of the FFCC. The same is true of medical licenses, and other licenses to engage in various professions that are regulated by the state, including teachers licenses.  I don't think anybody has ever successfully argued that the public schools of other states are required to honor licenses issued by the NY State Education Department to people who want to be public school teachers in New York.  They can if they want to, but the FFCC does not require it, and every state is free to set the educational and other qualifications for licensing public school teachers. And the same is true of marriage licenses. Perhaps this gun debate will help people to understand the marriage recognition issue a bit better.

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