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Of course I know it's otherwise protected by the new Respect for Marriage Act and Obergefell, but I happened to be reading about the rather demure P&I Clause in Article 4. and it seemed relevant. IIUC, it's been used to guarantee that "fundamental" rights for a citizen of state A are recognized when travelling to all the other states. Is marriage not considered a fundamental right?

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    Not sure about how it "should" be in legal doctrine, but by codifying it into law they prevent the judicial branch from interpreting the constitution/existing laws in some way that seems illogical but suits their objective for some reason....Not that that would ever happen. Sometimes its good to have something explicitly be permitted rather than implicitly, just so there is no question and no room for anyone to argue.
    – Alan
    Dec 16, 2022 at 18:32
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    I guess I'm wondering why, before Obergefell, that clause wasn't used as the basis for a lawsuit by a couple from a gay-marriage-state who moved or was visiting a non-gay-marriage-state, and then had their spousal rights violated at a hospital during some health emergency because their marriage wasn't treated as valid.
    – Matt Chambers
    Dec 16, 2022 at 18:42
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    I remember what I thought was an almost bizarre case where a judge refused to divorce a gay couple because they couldn’t be legally married in that state. I thought that was like an underage kid getting into a bar, starting a fight and they can’t throw him out because he is too young to be there in the first place.
    – gnasher729
    Dec 17, 2022 at 16:31
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    @MattChambers This was one theory of many that was argued. There were dozens of cases addressing every possible theory.
    – ohwilleke
    Dec 19, 2022 at 20:10

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The relevant portion of the U.S. Constitution is the full faith and credit clause (which the Respect for Marriage act is primarily an implementation and enforcement of). This requires states to honor marriages and divorces entered into in different states (subject to limited public policy exceptions that the Respect for Marriage act further limited), and also, for example, paternity determinations and court judgments from other states.

This was one argument among many used to argue that same sex marriages from other states should be recognized in other states. But the U.S. Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015), in which it established a right to same sex marriage in all U.S. states, relied instead mostly upon a substantive due process clause analysis similar to that of Loving v. Virginia, 388 U.S. 1 (1967), which held that bans on interracial marriage were unconstitutional.

The Article IV privileges and immunities clause protects very little (mostly the right to interstate travel and the right for an out of state resident to be licensed in a profession in a state).

The Slaughterhouse cases, 83 U.S. 36 (1872), in the late 19th century gave a very crabbed interpretation to the 14th Amendment privileges and immunities clause, limited that only to rights arising from federal citizenship.

The logic of the Slaughterhouse line of cases spilled over into the privileges and immunities clause of Article IV of the U.S. Constitution. The Article IV privileges and immunities clause applies to rights specific to state citizenship to prevent those rights from being denied to out of state U.S. citizens. But those rights are few and far between, and court crafted exceptions have been carved out in cases where it does exist (hunting and fishing license fees and college tuition, for example).

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  • Do you know if a "full faith and credit" argument was ever tested in court prior to Obergefell? I could only find mention of cases that were dismissed on standing.
    – Nate Eldredge
    Dec 20, 2022 at 1:02
  • @NateEldredge I know for certain that it was raised in trial courts prior to Obergefell, but I don't recall if it prevailed. At that time, the Defense of Marriage Act purported to permit states to disregard same sex marriages entered into in other states as an interpretation and enforcement of the full faith and credit clause by Congress, so any ruling in favor of a party based upon full faith and credit would have had to also find that the Defense of Marriage Act was unconstitutional. There were several dozen cases and I followed a good sampling of them. I might have citations somewhere.
    – ohwilleke
    Dec 20, 2022 at 1:05
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    @NateEldredge The DOMA barrier was ended in the Windsor case in 2012. oyez.org/cases/2012/12-307
    – ohwilleke
    Dec 20, 2022 at 1:21
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    @NateEldredge Pre-Windsor, a Maryland case resolved the question of recognition of a same same marriage validly entered into in another state on the parallel and related basis of comity rather than full faith and credit which DOMA purported to rule out. mdcourts.gov/data/opinions/coa/2012/69a11.pdf See also Christiansen v. Christiansen, 253 P.3d 153, 154 (Wyo. 2011) and Dickerson v. Thompson, 897 N.Y.S.2d 298, 299–301 (N.Y. App. Div. 2010).
    – ohwilleke
    Dec 20, 2022 at 1:36
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    Indeed, according to this 1996 article, courts throughout the US often asserted as valid, but rarely ever actually applied, "public policy exceptions" (to the full faith and credit clause) as a basis for not recognizing a marriage (even going back to the days of anti-miscegenation laws). They very regularly recognized them under comity.
    – zibadawa timmy
    Dec 20, 2022 at 9:02

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