May 14, 1996
The Honorable Henry Aldridge North Carolina House of Representatives Room 533, LOB 300 N. Salisbury St. Raleigh, North Carolina 27601-1096
RE: Advisory Opinion: Validity of Same-Sex Marriages Performed in Other States; N.C.G.S. §51-1
Dear Rep. Aldridge:
You have requested our opinion as to whether under current law North Carolina would be required by the full faith and credit clause of the United States Constitution to recognize samesex marriages that are performed legally in other states.
In the case of Loughran v. Loughran, 292 U.S. 216 (1934), the United States Supreme Court held that a state must recognize marriages from other states as valid unless those marriages are polygamous, incestuous, "or otherwise declared void by statute." N.C.G.S. §51-1 provides solely for a marriage between a man and a woman. It is our opinion that this provision declares void marriages which are not between a man and a woman and that on this basis North Carolina may refuse to recognize same-sex marriages performed in other states.
Some concern has been expressed because N.C.G.S. §51-1 also requires marriages to be solemnized, and yet North Carolina recognizes common law marriages from other states. However, solemnization is purely a procedural matter, whereas same-sex marriage involves fundamental policy determinations such as those involved in polygamy and incest. Therefore, North Carolina’s decision to yield to other states on the procedural issue of solemnization does not mandate that the state also yield on the policy issue of same-sex marriage. The purpose of the full faith and credit clause is to insure that states will not act as independent sovereignties, free to ignore obligations created by the laws and judgments of other states. However, "the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events." Pacific Employers Ins. Co. v. Industrial Acci. Commission, 306 U.S. 493, 502.
In the course of our research we came across several federal cases from other circuits which deal with same-sex marriages. In Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995), the Eleventh Circuit held that the Attorney General of Georgia violated the First Amendment rights of a prospective employee when he withdrew an offer of employment to her upon learning of her plans for a homosexual marriage. The court stressed, however, that "[t]he intimate relationship between Shahar and her partner whom she planned to marry did not involve marriage in a civil, legal sense but it was inextricably entwined with Shahar’s exercise of her religious beliefs." 70 F.3d 1224. None of the cases we found were based on the full faith and credit clause, and the earlier cases cited appear to be controlling on that issue. Thus, we conclude that pursuant to
N.C.G.S. §51-1 North Carolina can refuse to recognize same-sex marriages performed in other states.
Ann Reed Senior Deputy Attorney General