Perhaps the biggest mystery of the recent judicial avalanche in favor of marriage equality is the absence of Article IV in what are clearly Article IV cases. Consider Hamby v. Parnell, a case striking Alaska’s marriage ban.
Perhaps it is the lack of an Article IV claim, as opposed to Judge Heyburn’s decision in Kentucky that intentionally bypassed the Full Faith and Credit Clause of Article IV. Still, though, Judge Timothy M. Burgess, appointed to the District of Alaska by President George W. Bush, finds his way through to strike the ban according to Due Process and Equal Protection under Amendment XIV. Still, though, in a case in which four couples are demanding their marriages from other states be recognized in Alaska, it would seem Full Faith and Credit should be a glaring issue.
To take an example, my father has been married twice, once each to different women. In his first marriage, the couple lived in three different states and a foreign country over the years. They never had to remarry in any of those jurisdictions; the Washington state marriage was sufficient, an act and record of one state recognized in another. In his second marriage, the couple has lived in two states and spent an extended period in Mexico. They did not have to remarry in any other jurisdiction; their Oregon marriage sufficed for other states and, indeed, other countries. This, ultimately, is what is at stake. Perhaps Article IV won’t come into it until a state refuses another state’s marital record in order to force the couple to repeat the ceremony and pay out for licensing in the new state.
The bottom line, however, is that another state’s marriage ban has collapsed under constitutional weight. This much, at least, is hardly mysterious.
Burgess, Timothy S. “Order”. Hamby v. Parnell. United States District Court for the District of Alaska. 12 October 2014.