I am writing to dispute an item that may appear trivial to many but is crucial to a significant number of people. John Haslinger, director of health and welfare consulting for New England at Mellon Human Resource and Investor Solutions, Boston, made several materially erroneous comments in your March 8, page 2 article "New marriages, new issues," regarding the full faith and credit clause, or FFCC, of the U.S. Constitution (Article 1, Section 4) and its applicability to same-sex marriages.
As an Ohio attorney and an individual who believes in equality for all people, I would have preferred that Mr. Haslinger had been correct in his assertion that the FFCC would "overrule any state statute or constitutional amendment that outlaws same sex marriage." I also would have preferred that his hypothetical same-sex couple married in Massachusetts that moved to Ohio would still be considered legally married in Ohio, based on an application of the FFCC. But these assertions are legally inaccurate for two reasons.
First, while the FFCC makes every state accept "the public acts, records, and judicial proceedings of every other state," marriage has never been considered a "public act, record, or judicial proceeding" that the FFCC mandates would be transportable from state to state (although divorce, interestingly, is). A historical example underscores this: if the FFCC applied to marriages, the nation never would have undergone its struggle over interracial marriage during the 1960s, because as soon as one state legalized interracial marriage, it would have been legal in every other state. But that did not occur, as the FFCC has never applied to marriage. Rather, when the U.S. Supreme Court legalized interracial marriage nationwide, the decision was based on the equal protection and due process clauses of the Constitution; the FFCC was not even mentioned in that case.
Second, even assuming for the sake of argument that the FFCC did apply to marriage, the U.S. Supreme Court stated in Loughran v. Loughran, 292 U.S. 216, 231 (1934), that the FFCC requires states to accept the public acts, records and judicial proceedings of another state only when those public acts, records and judicial proceedings are not against the "strong public policy" of the forum state. Ohio's new Defense of Marriage Act clearly states that any union (including civil unions), besides those between one man and one woman, are "against the strong public policy" of Ohio. So long as this act is on the books in Ohio, and so long as it is not stricken on equal protection grounds, gay and lesbian couples that have been legally married, civilly unioned, or domestically partnered elsewhere but who visit (denial of hospital visitation rights, etc.), move to or live in Ohio, will have no rights, pension or otherwise.
David A. Groshoff
attorney at law