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Full Faith and Credit Easiest Path to Marriage Equality?

By Robyn Hagan Cain | Last updated on

As California considers the constitutionality of Prop 8 in the state Supreme Court, we suspect the national debate over same-sex marriage will only grow louder.

And it should.

Recently, SCOTUSblog hosted a symposium on the same-sex marriage debate. Most of the contributors on the symposium theorized that, if the court were to hear Perry v. Schwarzenegger, the California same-sex marriage challenge, the law should side with marriage equality.

Maybe we’re cynics, but we’ve never believed that the party that should win necessarily prevails in court. It doesn’t matter who’s correct, who’s honest, or who’s innocent; what matters is how the judge rules. That’s why we think the safer path to marriage equality is the full faith and credit clause.

Earlier this year, the Fifth Circuit Court of Appeals ruled in Adar v. Smith that a Louisiana state employee was not required to issue a new birth certificate with the names of same-sex parents who legally adopted a Louisiana-born child in New York because Louisiana does not permit same-sex couples to adopt. In its ruling, the Fifth Circuit found that the full faith and credit clause applies to courts, but not to state officials.

Lambda Legal, representing the parents in the case, filed a writ of certiorari to the Supreme Court over the summer. We hope that The Nine agree to hear the case because we suspect that a Supreme Court review of Adar would yield a different result. Should the Supreme Court decide that state officials must afford full faith and credit to another state's legal documents, the decision could also extend to a state's obligation to recognize same-sex marriages performed in other states.

University of Michigan Law Professor Steve Sanders recently wrote that the Supreme Court should grant cert in Perry to protect thousands of same-sex couples whose marriages are not recognized in 44 states. We think that full faith and credit recognition through Adar would protect these couples' marriages as they travel and move between the states.

Granted, an Adar victory is not as symbolically satisfying as Perry victory, but an Adar challenge involves fewer risks than a same-sex marriage challenge.

In Williams v. North Carolina, the Supreme Court ruled that once a divorce is effective in one state, it must receive full faith and credit in the other states. We think the Court could easily extend the Williams reasoning to apply to parental rights through adoption in Adar and same-sex marriage.

If the Supreme Court hears Adar and decides that state officials need not afford full faith and credit to other state's documents, then same-sex marriage proponents continue with the status quo, wait a few years, and bring a Perry-type case when the Court is staffed with more marriage-equality-minded judges. If the Court hears Perry v. Schwarzenegger, and finds that there is no constitutional right to same-sex marriage, it could be years before a same-sex marriage challenge has another chance.

It's not a matter of who is right; it's a matter of who can win.

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