D.C. Gets It Right on Marriage Recognition

by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

Imagine that you’re a resident of, say, Massachusetts, and you decide to bring your spouse down to D.C. for a long weekend of visiting monuments and museums. Now imagine that when you get to D.C., you’re suddenly no longer married, because D.C. refuses to recognize your Massachusetts marriage. Just like that, you’ve lost all the legal protections that being married brings. Heaven forbid that while you’re here visiting, your spouse is hit by a Tourmobile and seriously injured. She’s rushed to a D.C. hospital, where she’s placed in intensive care. And then you find out that only spouses and other immediate family members are permitted to visit patients in the ICU, so you are denied access to your loved one at this moment of great need.

Or imagine that you and your spouse have moved to D.C. from Massachusetts so that you can take a job with a K Street lobbying firm. When you try to enroll your spouse in your employer’s health insurance plan, you’re denied spousal coverage because your marriage isn’t recognized in D.C.

Sound farfetched? Hardly.

Until last week’s unanimous vote by the D.C. Council paved the way for D.C. to recognize the marriages of same-sex couples lawfully entered into in other jurisdictions, suddenly becoming “unmarried” when stepping across the borders into D.C. was a harsh reality for same-sex couples who have been legally married elsewhere. Is this any way to run a country?

We don’t think the Framers of our Constitution thought so. Article IV, Section 1 of the Constitution requires that
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state.
While some commentators believe that interstate marriage recognition may be less a function of constitutionally-mandated “full faith and credit” than of principles of “comity” or “choice of law,” the decision of the D.C. Council is certainly consistent with the nation-unifying policy that animates the Full Faith and Credit Clause.

Under our system of federalism, the states have agreed to give up some of their own sovereignty in order to form a single, unified nation. This result is, in part, effectuated by the Full Faith and Credit Clause. As the Supreme Court has stated, “The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation . . . “ As Justice William O. Douglas put it, the Constitution “in no small measure brings separate sovereign states into an integrated whole through the medium of the Full Faith and Credit Clause.”

Under the principles that undergird the Full Faith and Credit Clause, couples who are legally married in one state have every right to expect their relationship to be recognized everywhere else in this country. The D.C. Council is to be applauded for ending the game of “now you’re married, now you’re not,” and for doing its part to ensure that same-sex couples legally married elsewhere can expect to have their marriages recognized in our nation’s capital, whether they move here or, like so many thousands of others this time of year, are just visiting to enjoy the Cherry Blossoms.