Re: [UUPoly-L] commerce clause and interracial marriage

licorice gumdrop <licorice.gumdrop@gmail.com> · Sun, 20 May 2007 13:00:53 -0000

On May 20, 2007, at 2:34 AM, Catherine Deville wrote:

... I did *mean* the Full Faith and Credit

Clause and *said* "interstate commerce clause" instead because the  
Full

Faith and Credit Clause does also apply to interstate commerce, ...

er, no.  in creating a federal system to join a nation of  
shopkeepers, the founders wrote the commerce clause to prevent states  
from instituting protectionist legislation that would be detrimental  
to the nation as a whole.  the commerce clause controls the  
relationship between federal laws and state laws, and gives to  
congress alone the ability to regulate interstate commerce.
the full faith & credit clause, OTOH, controls how a state must treat  
laws (and court decisions) from other states.
ff&c does *not* apply to interstate commerce.  in fact, in areas  
where there has been no federal legislation, state laws have been  
found to violate the "dormant commerce clause" - it is the concept  
that a state cannot pass a law that improperly burdens interstate  
commerce, even in an area where the u.s. congress has been silent.   
this is not because such a law may conflict with laws of other  
states, but because such a law intrudes on a field pre-empted by  
congress.
Yes, but were it not for the Full Faith and Credit Clause and its

application to marriage, the Lovings would never have been arrested  
in VA

for violating VA's anti-miscegenation marriage laws in the first  
place ...

again, no.  the lovings were arrested for violating *virginia* law -  
sections 20-58 and 20-59 of the virginia code.  the lovings, VA  
residents, left the state to evade VA law (violating §20-58); the  
specific law they sought to evade was the prohibition against  
miscegenation, §20-59.  you'll note that §20-59 was a  prohibition  
against whites marrying individuals of other races, not a blanket  
refusal to recognize out-of-state marriages.
the *virginia* laws were found to be unconstitutional, not because  
they allowed virginia to ignore a court decision from another  
jurisdiction, but because they, in and of themselves, violated the  
fourteenth amendment.
if you'll read the decision, you'll notice that nowhere does the  
court invoke the full faith & credit clause.  it's all about equal  
protection and due process under the fourteenth amendment.
...  I had them clear in my head, but until I got Dave's reply  
didn't realize my

wording was fuzzy and had to go look 'em up - but yes, I intend to be

referring to the Full Faith and Credit Clause.

from your reply to dave:
[ff&c] applies whenever something like marriage laws are  
significantly different from state to state

this is about 180 degrees from reality.  in interpreting the ff&c  
clause, courts have found that state laws and public policy have to  
be on par for the ff&c clause to apply, unless there's an overriding  
federal interest (which is why congress has the power to determine  
the extent and meaning of the ff&c clause).  that is, generally  
speaking, state A only has to enforce state B's laws/court decisions/ 
etc. to the same extent state A enforces its own laws/court decisions/ 
etc. in the same matter.
this is one of the reasons ff&c was not an issue in loving v.  
virginia - virginia's public policy and laws regarding marriage were  
vastly different than those of the district of columbia, and as such  
virginia would *not* have been required to recognize an incompatible  
marriage ratified in the district ... had an overriding federal  
interest (embodied in the 14th amendment) not been in the way.  the  
court wrote:
"Marriage is one of the “basic civil rights of man,” fundamental to  
our very existence and survival. To deny this fundamental freedom on  
so unsupportable a basis as the racial classifications embodied in  
these statutes, classifications so directly subversive of the  
principle of equality at the heart of the Fourteenth Amendment, is  
surely to deprive all the State’s citizens of liberty without due  
process of law. The Fourteenth Amendment requires that the freedom of  
choice to marry not be restricted by invidious racial  
discriminations. Under our Constitution, the freedom to marry, or not  
marry, a person of another race resides with the individual and  
cannot be infringed by the State. "
what is implicit in this decision is that there may be a supportable  
basis upon which a state may deny the "fundamental freedom" of  
marriage to an individual.  should a state refuse to recognize an out- 
of-state marriage between two persons of the same gender, for  
example, the ff&c clause may not provide even the most flimsiest of  
covers.
regards,
      jenny