By: Jordan Boudreaux, Volume 107 Staff Member
Article IV, Section 1 of the Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state.” Conceptually, the Full Faith and Credit Clause (“the Clause” or “Article IV”) provides several functions—the Clause prevents individuals from moving across state lines to escape enforcement of adverse court rulings, prohibits re-litigation of matters in different states, and generally maintains the rule of law between states. By way of example, the Clause ensures that a couple legally married in one state remains married in another. But state laws are challenging these ideals by becoming increasingly polarized in politically salient areas. Will states be willing to give full faith and credit to each other in light of extremely incompatible legal and political regimes?
I. STATES ARE EXPERIENCING AN INCREASED POTENTIAL FOR PARTISAN LAWMAKING
In the Summer of 2022, the Supreme Court issued a series of decisions that heightened states’ abilities to legislate in many politically salient areas of the law. Most directly, the Court’s decision in Dobbs v. Jackson Women’s Health Organization saw the immediate criminalization of abortion in eight states and spurred a wave of restrictions in many others. Less directly, the Court forbade widespread federal COVID regulations—while clarifying that states maintained regulatory authority in the same area—and expanded states’ ability to exercise state law on Indian reservations. Furthermore, in its current term the Court may dramatically empower state legislatures and fuel polarization if it validates the Independent State Legislature doctrine.
But even beyond issues that have reached the Supreme Court, state laws have diverged in politically impactful ways. In twenty-nine states, the recreational use of marijuana carries a criminal penalty, while twenty-one states freely validate its purchase and sale (in open defiance of federal law). As it relates to healthcare, twenty-two states have made legislative efforts to limit transgender healthcare, even while others openly advocate for broad protections. Thus, both Supreme Court jurisprudence and state legislatures are independently fueling an increasingly visible partisan divide in state laws.
This Post does not individually analyze the legal fallout of Dobbs, state mandates, or any other politically salient law with specificity. Rather, this Post reviews state reactions to politically salient laws and court decisions to argue that states’ increased ability and willingness to pass politically divisive laws strains the Constitution’s Full Faith and Credit Clause. Practically, this is likely to decrease faith in the United States’ federalist system and beget a more confederated and less integrated union.
II. THE CLAUSE REQUIRES STATES TO RESPECT EACH OTHERS’ JUDGMENTS, REGARDLESS OF STATE POLICY
Existing Article IV case law does not provide an answer to the challenge posed by dramatically divergent state laws—the current standard for an Article IV enforcement action is unhelpful amidst significant polarization. Under existing law, “the full faith and credit command is exacting with respect to a final judgment rendered by a court with [valid] authority.” The Supreme Court unambiguously maintains that “a final judgment in one state . . . qualifies for recognition throughout the land,” and takes for granted that states will respect each other’s final judgments, regardless of those states’ policy preferences. States must enforce each other’s judgments, regardless of the legal basis for those judgments. The Clause further “precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.” In other words, Article IV instructs states to respect each other’s final judgments without regard to that state’s own controlling statutes or policies. The Court has not addressed what states should do when one state’s final judgment is significantly contrary to another state’s statutory or public policy. Article IV only commands states to respect each other’s judgments, without significant nuance.
As an example, V.L. v. E.L. is emblematic of Article IV’s traditionally straightforward operation. In V.L., a Georgia court entered a final judgment of adoption for plaintiff V.L., making V.L. a full legal guardian of her children along with her partner, defendant E.L. Both V.L. and E.L. were women. The couple moved to Alabama before separating, and E.L. maintained primary custody of their children. After V.L. attempted to visit her children, the Alabama Supreme Court denied V.L.’s visitation rights, based on its determination that the Georgia courts did not have proper jurisdiction to label V.L. as a legal guardian. On appeal, the United States Supreme Court determined per curiam that the Alabama court had erred in its judgment. With an unceremonious legal analysis, the Court held that under Article IV, Alabama had to uphold V.L.’s legal guardianship as determined by the Georgia courts. The Court characteristically noted that “[a] State may not disregard the judgment of a sister State because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits,” and emphasized states’ inability to challenge the merits of interstate legal judgments.
While V.L. nearly broached a difficult issue in its enforcement of same-sex adoption rights, both the Alabama Supreme Court and United States Supreme Court sidestepped the controversial issue by focusing on a jurisdictional determination—rather than saying that V.L.’s adoption was legally right or wrong, the Alabama Supreme Court had simply asserted that the Georgia courts did not have jurisdiction, and thus could not rule on the matter. And because the Supreme Court ultimately determined that the Georgia courts did have proper jurisdiction, Alabama had to enforce the Georgia courts’ judgment. As a result, V.L. displays the simple calculus that Article IV traditionally calls for—states are required to respect each other’s legal judgments and give those judgments the effect that they would have in their original state of issuance.
III. CONFLICTS IN STATE LAW STRAIN THE FULL FAITH AND CREDIT CLAUSE TO AN UNPREDICTABLE END
In 2023, states are openly defying Article IV’s command. Following Dobbs, Attorneys General in several left-leaning states, including Minnesota and New York, made commitments to protect interstate abortion rights in spite of criminal penalties elsewhere. As it pertains to transgender healthcare, California has passed a law explicitly shielding parents of transgender youth from interstate prosecution related to gender-affirming healthcare. And on the opposite coast, Florida governor Ron DeSantis has communicated his intent to protect Republican Party member and former President Donald Trump from a possible extradition to New York, in light of criminal charges. Thus, several states have already decided to ignore politically charged out-of-state judgments, forecasting systemic violations of Article IV.
While abortion politics and transgender healthcare issues perhaps offer the clearest examples of states abrogating (or communicating their intent to abrogate) their Article IV duties, continued legislation in politically salient areas will likely beget similar interstate enforcement challenges. With a vague and underdeveloped body of Article IV caselaw, federal courts will be challenged by diametrically opposed state laws. Whether federal courts can meet this challenge while remaining removed from politics remains to be seen. Amidst claims of increasing judicial partisanship, the courts will be forced to either upend state legal regimes by enforcing politically charged laws, or to abrogate their constitutional duty by giving states free reign in legal enforcement.
Dramatically increased partisanship—fueled by a volatile faith in the Supreme Court and an increasingly pronounced hostility in politics—is challenging the rule of law between states and straining Article IV of the Constitution. State laws are increasingly diverging on political lines. This has the potential to challenge the text and underdeveloped jurisprudence of the Full Faith and Credit Clause. While it is unclear what impact this will ultimately have on a practical level (i.e., the extent to which any state will attempt to compel enforcement of a politically charged judgment from another), the incompatibility of state laws exposes a functional hole in the Constitution and foreshadows a starkly divided Union.
 U.S. Const. art. IV.
 See Constitution Annotated: Art IV. S1.1 Overview of Full Faith and Credit Clause, Congress.gov https://constitution.congress.gov/browse/essay/artIV-S1-1/ALDE_00013015 [https://perma.cc/P5SC-Y2KH].
 Cf. id. This specific example enjoys legislative enforcement as well. Respect for Marriage Act, 1 U.S.C. § 7.
 Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2284 (2022) (overturning the constitutional right to an abortion); What if Roe Fell?, Ctr. for Reprod. Rts., 4 (2019) https://reproductiverights.org/wp-content/uploads/2021/12/USP-2019-WIRF-Report-Web_updated.pdf [https://perma.cc/XGJ6-5WSB].
 NFIB v. DOL, 142 S. Ct. 661, 664 (2022) (expressing concern over federal preemption of state laws).
 Okla. v. Castro Huerta, 142 S. Ct. 2486, 2493 (2022) (“[A]s a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.”).
 Moore v. Harper, SCOTUSBlog, https://www.scotusblog.com/case-files/cases/moore-v-harper-2 [https://perma.cc/UM6Q-2FG8]. The independent state legislature theory posits that sole authority for regulating federal elections lies in the hands of state legislatures and thus that courts and other institutions cannot revise legislative decisions pertaining to the federal electoral process. See Hansi Lo Wang, The Supreme Court is Weighing a Theory that Could Upend Elections. Here’s How, NPR (Jan. 22, 2023), https://www.npr.org/2023/01/22/1143086690/supreme-court-independent-state-legislature-theory-moore-v-harper [https://perma.cc/6FNF-MMY9].
 See Claire Hansen, Horus Alas & Elliott Davis Jr., Where is Marijuana Legal? A Guide to Marijuana Legalization (Feb. 16, 2023), https://www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization [https://perma.cc/E6VT-9S77].
 See Criminalizing Gender Affirmative Care with Minors, Am. Psych. Assoc. https://www.apa.org/topics/lgbtq/gender-affirmative-care [https://perma.cc/NP2C-32D4]; cf. Minneapolis Issues Order to Protect Those Seeking Gender-Affirming Health Care, MPR News (Dec. 2, 2022) https://www.mprnews.org/story/2022/12/02/minneapolis-issues-order-to-protect-those-seeking-genderaffirming-health-care [https://perma.cc/DG2F-7P2C].
 Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003) (internal quotations omitted).
 Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998).
 Id. at 243 (Kennedy, J., concurring) (“[W]hen a judgment is presented to the courts of a second State it may not be denied enforcement based upon some disagreement with the laws of the State of rendition. Full faith and credit forbids the second State to question a judgment on these grounds. There can be little doubt of this proposition.”) (emphasis added).
 V.L. v. E.L., 577 U.S. 404, 407 (2016) (emphasis added) (quoting Milliken v. Meyer, 311 U.S. 457, 462 (1940)).
 Id. at 405.
 Id. at 406.
 Id. at 409–10.
 Id. at 407.
 Id. at 408.
 Id. at 409–10. The Court also noted that interstate judgments enjoy a presumption of jurisdictional validity that must otherwise be disproved, curtailing potential “gamesmanship” by courts asserting improper jurisdiction on attenuated statutory interpretations, and further narrowing states’ ability to challenge each other’s judgments. Id. at 408.
 See Thompson v. Thompson, 484 U.S. 174, 180 (1988) (Scalia, J.) (noting that Article IV requires states “to accord the same force to judgments as would be accorded by the courts of the State in which the judgment was entered.”); see also Constitution Annotated: Art IV. S1.3.2 Modern Doctrine on Full Faith and Credit Clause, Congress.gov https://constitution.congress.gov/browse/essay/artIV-S1-3-2/ALDE_00013019 [https://perma.cc/6AKP-LRFL] (summarizing modern full faith and credit jurisprudence).
 E.g., Attorney General Ellison Joins AGs Nationwide in Reaffirming Commitment to Protecting Abortion Access, Office Minn. Att’y Gen. Keith Ellison (June 27, 2022), https://www.ag.state.mn.us/Office/Communications/2022/06/27_AbortionRights.asp [https://perma.cc/6QE9-DTMR] (“Despite U.S. Supreme Court Dobbs decision, [Minnesota’s Attorney General] joins national coalition of 22 attorneys general to emphasize that abortion remains safe and legal in Minnesota and states across the country.”); Attorney General James Sends Clear Message: Access to Abortion is Legal and Protected in New York, N.Y. Att’y Gen., https://ag.ny.gov/press-release/2022/attorney-general-james-sends-clear-message-access-abortion-legal-and-protected [https://perma.cc/7QVH-A5FR] (“As abortion rights are rolled back and banned in other states, it is important for everyone to know that New York is, and will continue to be, a safe haven for abortion access . . . .”).
 S.B. 107, 2021-2022 Leg., Regular Sess. (Ca. 2022); see also Hannah Schoenbaum, Republican states aim to restrict transgender health care in first bills of 2023, PBS (Jan. 7, 2023), https://www.pbs.org/newshour/politics/republican-states-aim-to-restrict-transgender-health-care-in-first-bills-of-2023 [https://perma.cc/BGR4-6AHC] (highlighting interstate conflicts on transgender healthcare legislation).
 Shane Goldmarcher, DeSantis Says Florida Wouldn’t Aid Trump’s Extradition to New York, N.Y. Times (Mar. 30, 2023), https://www.nytimes.com/2023/03/30/us/politics/trump-extradition-desantis-florida.html [https://perma.cc/2AP8-SM9A]. Despite DeSantis’s spirited assertions, Trump had already communicated his intent to (and ultimately did) willingly surrender to New York authorities after being charged. Id.; Bobby Caina Calvan & Deepti Hajela, Trump’s Surrender at Courthouse Creates New York Spectacle, AP (Apr. 4, 2023), https://apnews.com/article/trump-indictment-new-york-arrest-c82a52fbbe41e55f0e34f313b4e19afd [https://perma.cc/X9Y2-CYQB].
 For example, a woman who is found liable under Texas’s abortion bounty statutes may travel to more sympathetic states for sanctuary. This Post does not take a stance as to the rightfulness or wrongfulness of states abrogating their constitutional duties—it only seeks to highlight the existence of constitutional conflict between states.
 Cf. supra Section I.
 Richard L. Hasen, The Supreme Court’s Pro-Partisanship Turn, 109 Geo. L.J. Online 50, 50 (2020) (arguing that the Supreme Court has lost the faith of social scientists and fueled partisanship).
 See Philip Bump, A New Way to Visualize America’s Surge in Partisan Hostility, Wash. Post (Sept. 16, 2022), https://www.washingtonpost.com/politics/2022/09/26/republicans-democrats-partisan-hostility [https://perma.cc/5RFS-6CKM]; see also Hasen, supra note 29.