‘Full Faith and Credit,’ CHP’s, and DOMA

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 Effect thereof.—U.S. Constitution, Article IV, Section 1

I have a state-issued driver’s license and motorcycle endorsement. It was issued by the government of the Commonwealth of Virginia, and it authorizes me to operate an automobile or motorcycle on public roads. It also authorizes me to operate an automobile or motorcycle in the neighboring jurisdictions of Washington, D.C. and Maryland. In fact, it authorizes me to operate these types of vehicles anywhere in the United States, as it should. Imagine the chaos if Illinois decided it wouldn’t recognize Virginia driver’s licenses, or if California wouldn’t recognize Oregon’s, or if Texas wouldn’t recognize New Hampshire’s.

Each of the fifty states are required by the U.S. Constitution to afford ‘full faith and credit’ to the official actions of each of the other states. When I travel to any other state in the country, their governments have no authority to question my Virginia-issued driver’s license. It is perfectly valid, no less so than if my license had been issued by the state in-which I am traveling. And that is that.

This recognition is not, and should not be, completely unlimited. For example, if I actually move to a different state, my new state government has every right to require that I get a new license issued by them, and that I follow their rules. For example, let’s say (for the sake of argument) that South Dakota will only issue driver’s licenses to people over the age of twenty-one, while Virginia will issue them to anybody over sixteen. If I happen to be a Virginia resident with a Virginia license, South Dakota must recognize it if I happen to be passing through . . . even if I am only eighteen. But if I move to South Dakota, they may require that I obtain a South Dakota license within sixty days (or whatever) to maintain my driving privileges. As a resident of South Dakota, they have every right to refuse to issue a new license until I comply with their requirements—that I be twenty-one or older, in this example.

Although it is not explicitly stated by the U.S. Constitution, it is certainly implied that the ‘full faith and credit’ clause must also apply to federal acceptance of state records and decisions. For example, the federal government must accept a state-issued birth certificate as evidence of a political candidate’s age and citizenship. The federal government must also accept my Virginia-issued driver’s license as valid identification, and as valid authorization to operate an automobile or motorcycle in national parks, military bases, and other federal properties.

You might see where I’m going with this. Under the federalist system of government, precedence goes to the state government in most domestic matters, and each state much recognize—at least to a certain degree—the validity of other states’ decisions.

Unfortunately, the ‘full faith and credit’ clause is often not applied appropriately by either state or federal governments. For example, in addition to my Virginia-issued driver’s license, I also have a Virginia-issued concealed handgun permit (CHP). But while my driver’s license is recognized as valid anywhere in the United States, my CHP is only recognized by a sub-set of states (PDF link) that have agreed to CHP reciprocity with Virginia. It is also completely disregarded on most federal properties, aside from some limited recognition in national parks. This is blatantly, undeniably unconstitutional. My CHP should be valid anywhere in the United States, just like any other valid state-issued license, under the ‘full faith and credit’ clause of the U.S. Constitution.

The nitty-gritty details of each state’s requirements and procedures are irrelevant. Maybe Oklahoma is too lax in issuing driver’s licences. Maybe Montana is too lax in issuing CHP’s. Maybe California is too restrictive in issuing driver’s licenses. Maybe Massachusetts is too restrictive in issuing CHP’s. None of this matters. Each state must respect duly-issued licenses from other states, at least when dealing with non-residents. The federal government must also respect these state-issued licenses.

Before my ‘conservative’ friends cheer (or my ‘liberal’ friends scream) too loudly, consider this: the doctrine of ‘full faith and credit’ also applies—for better or worse—to the civil institution of marriage.

Let’s not get sidetracked into ancillary issues here. Whether states have the authority to issue CHP’s at all, as if the right to carry [bear] arms is a privilege issued by the state rather than a basic human right codified in the Bill of Rights, is beside the point of this discussion. Likewise, the debate about whether states ought to be redefining the word ‘marriage’ to mean something it simply does not mean isn’t the point. Yes, I know, marriage is an institution that predates the existence of any of our civil governments. From the perspective of natural and moral law, its definition cannot be changed by government action or popular acclaim. If the state decrees that 2 + 3 = 4, and a majority of citizens agree, it does not actually mean that 2 + 3 = 4. Majority votes can’t change reality.

But marriage, as a civil institution, is indeed defined and conferred by the state. Maine does not have a moral right to define marriage in deviation from natural law, but it certainly has a legal right to do so . . . just as much as it has the legal right to decide whether to recognize first-cousin marriages, or under what conditions to accept divorce and remarriage, or what age people must be to marry, and so on. We can debate ad-nauseam whether the government of Maine should define marriage the way it does, but they have codified a particular definition into law through a democratic process, and they have every right to do so . . . no matter what you or I might think of it. Those who established Maine’s definition of marriage must answer to the citizens of Maine (and, eventually, to God), not to me or you.

It follows, then, that each of the other forty-nine states must accept—under the ‘full faith and credit’ clause—marriage licenses issued by the state of Maine, even if those licenses would not have been issued by other states that use a different definition of marriage (whether their definitions happen be in accord with natural law or not). It also follows that the federal government must accept Maine’s validly-issued marriage certificates, since ‘defining marriage’ is not one of the enumerated powers in Article I, Section 8 of the U.S. ConstitutionAs the Tenth Amendment clearly states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In other words, the Defense of Marriage Act (DOMA)—a 1996 law that prohibits the federal government from recognizing same-sex marriages and allows states to refuse recognition of same-sex marriages from other states—is unconstitutional. The federal government has no legal authority to question marriage certificates issued by any of the fifty states, no matter what definition of the word ‘marriage’ they use. Likewise, each of the fifty states must accept marriage certificates issued by any of the other states—at least for non-residents—just like they must accept other states’ driver’s licenses and CHP’s.

There is still an open issue with regard to people ‘permanently’ moving between states. For example, Virginia may require—like it does for driver’s licenses—that new residents obtain a Virginia marriage certificate within a certain number of days of their move to Virginia in order to recognize a marriage after that time period. In this case, Virginia may legally refuse to issue a new certificate to couples that do not conform to the Virginia definition of marriage, and may refuse to recognize that marriage as valid from then on. But—for example—if a legally married homosexual couple from Massachusetts visits Virginia, and one of the legal spouses ends up in the hospital, the Commonwealth of Virginia is constitutionally required to recognize their marriage as valid and allow visitation and any other spousal rights. Whether that marriage would have been permitted under Virginia law is irrelevant. Virginia must grant ‘full faith and credit’ to the Massachusetts-issued marriage certificate.

Again, I’m not attempting to address the moral issues here. I’m evaluating DOMA purely from the perspective of the U.S. Constitution and the doctrines of limited government. Marriage is not an enumerated civil liberty (although it could be argued that it falls under the Ninth Amendment). Even if it was, ‘marriage’ is a term that has a specific, immutable meaning under natural law—a meaning that includes the reproductive complementary of man and woman. But our system of government is one that places preeminent authority in the hands of the people, and then the states, and then lastly the federal government. So when the people act through their state governments, the federal government must defer to them—no matter how misguided their decisions might be—except in those few areas where the federal government has been granted its own authority by the U.S. Constitution.

I completely understand and support what DOMA was trying to accomplish, but the truth is that it runs afoul of the U.S. Constitution and must be repealed by Congress or overturned by the courts. Defining marriage is outside of the federal purview, and each of the fifty states must grant ‘full faith and credit’ to the marriage certificates issues by other states (at least for non-residents). You might not like it. I don’t like it. But, as I’ve said time and time again, we can’t ignore the parts of the constitution that we don’t like at any given moment. It’s either the law of the land, or it isn’t.

Of course, many of the same people who decry DOMA as unconstitutional seem to have no problem with the federal government and states selectively refusing to recognize CHP’s. Oh well. I’ll let those folks try to articulate the reasons for their moral inconsistency. As for me, I’m not interested in that kind of right- or left-wing political posturing. No, I’m interested in consistently applying the plain text of the U.S. Constitution, because I believe that—despite its imperfections—it codifies the best system of free, republican government yet devised. When it says that the states must give each other ‘full faith and credit’ in all of their acts, records, and proceedings . . . well, I take it at its word. If we don’t like it, we can amend it.

We defenders of traditional marriage must not impose our views through force, coercion, or extra-constitutional laws like DOMA. I would argue that our political opponents—the revisionists and so-called ‘progressives’—are the ones who are too often willing to skirt natural law, the U.S. Constitution, and simple logic in the service of short-term ‘feel-good’ stuff. We see it in their selective refusal to recognize CHP’s. We see it their imposition of the compulsory purchase of health insurance. We see it in their irrational repudiation of the fundamental human right to life. We see it every day, time and time again, on countless issues. We must be better than that. We must take our well-established moral and legal structures seriously, and we must work within their confines. We must be grounded in reality, consistent, and truthful. Let’s leave the fast-and-loose ‘convenience constitutionalism’ to the other guys.

Scott Bradford has been putting his opinions on his website since 1995—before most people knew what a website was. He has been a professional web developer in the public- and private-sector for over twenty years. He is an independent constitutional conservative who believes in human rights and limited government, and a Catholic Christian whose beliefs are summarized in the Nicene Creed. He holds a bachelor’s degree in Public Administration from George Mason University. He loves Pink Floyd and can play the bass guitar . . . sort-of. He’s a husband, pet lover, amateur radio operator, and classic AMC/Jeep enthusiast.