Full Faith and Credit Clause

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, Section 1

An essential purpose of the Full Faith and Credit Clause is to assure that the courts of one state will honor the judgments of the courts of another state without the need to retry the whole cause of action. It was an essential mechanism for creating a "union" out of multiple sovereigns. The first sentence of the Full Faith and Credit Clause appeared almost verbatim in Article IV of the Articles of Confederation, which read: "Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State." At the Constitutional Convention, the originally proposed article also specifically required each state to enforce the other states' judgments regarding debts, but that portion was dropped. There was little discussion of the constitutional provision during the Convention and ratifying period, but it was commonly assumed that the clause was at least in part intended to ensure that debtors could not escape their creditors by crossing into other states. Moreover, the "public Acts" requirement was apparently added to force state courts to enforce each other's insolvency laws.

Because the clause was drawn from the Articles of Confederation, there is very little discussion of it in the The Federalist, although James Madison asserted in No. 42 that its clarity was a great improvement over the version in the Articles. He listed the clause as one of several that "provide for the harmony and proper intercourse among the States."

The Supreme Court has invoked the clause to police state-court proceedings in three contexts: (1) determining when a state must take jurisdiction over claims that arise in other states; (2) limiting the application of local state law over another state's law in multistate disputes; and (3) recognizing and enforcing judgments rendered in sister-state courts.

First, the Court has used the clause to oblige state courts to hear claims that arise under sister-state laws. Thus, the Court has stated that a court cannot categorically refuse to hear claims that arise under another state's laws, at least where the courts recognize the equivalent claim based on local law. Hughes v. Fetter (1951). Nor may a state attempt to monopolize litigation by requiring that enforcement actions be heard solely in local courts. Tennessee Coal, Iron & Railroad Co. v. George (1914); Crider v. Zurich Insurance Co. (1965).

Second, the Supreme Court has also restricted state courts' ability to apply their own laws to multistate disputes. State courts may almost always apply their own procedural rules, including their own statutes of limitations, but there are times when a state's substantive law should give way to the substantive law of another state. It was Justice Joseph Story who first seriously explored this issue in 1834, and the first Supreme Court cases did not appear until the early twentieth century. Initially, the Court required the states to adhere to the traditional territorial principles for the choice of law to apply. That is, if particular legally designated events of a dispute happened in a particular state, say Massachusetts, but if the dispute came to trial in Pennsylvania, the Pennsylvania court had to apply Massachusetts law. Western Union Telegraph Co. v. Brown (1914); New York Life Insurance Co. v. Dodge (1918). Later, the Court allowed a state to apply its own substantive law whenever it had a legitimate interest in the outcome of the case. Pacific Employers Insurance Co. v. Industrial Accident Commission (1939). The most recent Supreme Court cases have collapsed the Due Process and Full Faith and Credit Clause inquiries into a single requirement for the application of forum law: "that state must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Allstate Insurance Co. v. Hague (1981).

With this shift in tests, the Court has backed away from constitutional scrutiny of state-court choice-of-law decisions. In fact, the Court has allowed one state to sue another state in the first state's courts despite the defendant state's sovereign-immunity laws. State of Nevada v. Hall (1979); Franchise Tax Board of California v. Hyatt (2003). Moreover, the Court has only once in the last fifty years limited a state's ability to apply its own law. Phillips Petroleum Co. v. Shutts (1985).

Third, although the Court has largely backed away from policing state choice-of-law decisions, it has imposed stringent requirements regarding recognition and enforcement of sister-state judgments. Practical interests usually require each state to recognize and enforce almost all final court judgments rendered by sister states, even those that offend the public policy of the enforcing state. Pursuant to Congress's implementing statute, the enforcing state's courts must give judgments at least as much effect as the rendering state would. Nonetheless, states can still apply their own statutes of limitations when enforcing judgments by other states' courts, and state administrative decisions that are not reviewed by a court are not entitled to respect in other states.

The Court has recognized a few relatively narrow policy-based exceptions to the states' obligations to enforce the judgments of other states' courts. First, a defendant who did not appear in the first proceeding can collaterally attack a judgment against him on the grounds that the first state's courts lacked personal jurisdiction over the defendant. Second, states are not permitted directly to affect land titles in other states by, for example, issuing a deed to land located in another state. Third, judgments based on purely penal claims (i.e., criminal or administrative fines) need not be enforced by other states. To fall into this penal exception, the judgment must be for the purpose of punishment rather than compensation, and the recovery must be in favor of the state, not a private individual. But tax judgments, judgments for punitive damages in favor of private plaintiffs, and compensatory tort judgments in favor of the state all fail to qualify for this penal exception. Fourth, states can apply their own evidentiary rules. For example, the enforcing state may accept testimony that would have been illegal under the rendering state's law. Finally, if a state court issues a divorce decree in an ex parte proceeding (where only one spouse appears), the absent spouse can collaterally attack the validity of the present spouse's domicile within the rendering state.

Congress has invoked its full faith and credit authority in certain specific contexts related to marriage, divorce, and children. A state court may modify a sister-state court's child-custody and support orders to suit "the best interests of the child." The Parental Kidnapping Prevention Act (28 U.S.C. § 1738a) attempts to fix jurisdiction over child-custody determinations and requires states that lack jurisdiction under the Act to enforce valid custody orders. The Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738b) allocates jurisdiction over the rendering of child-support orders and specifies states' enforcement obligations. When it appeared that Hawaii was recognizing the validity of same-sex marriages, Congress responded with the Defense of Marriage Act (DOMA) (28 U.S.C. § 1738c). DOMA enables each state to refuse to recognize other states' acts, records, and judicial proceedings purporting to validate same-sex marriages. Moreover, the Act specifically enables each state to deny rights and claims arising from same-sex marriages created in other states. These congressional acts presumably work to displace Supreme Court Full Faith and Credit Clause precedent in these areas.

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Erin O'Hara O'Connor
Professor of Law
Vanderbilt University Law School