In 1996, did the U.S. Constitution's Full Faith and Credit Clause force North Carolina to recognize a same-sex marriage performed legally in another state?

Plain-English summary

In April 1996, with the federal Defense of Marriage Act not yet enacted and the issue of out-of-state same-sex marriage recognition heating up nationally, a staff attorney for the General Assembly's Research Division asked the AG a focused question: did the U.S. Constitution's Full Faith and Credit Clause require North Carolina to recognize a same-sex marriage performed legally in another state?

Senior Deputy Attorney General Ann Reed answered that it did not. § 51-1 of the North Carolina General Statutes defined marriage as between a man and a woman, and the AG concluded that same-sex marriages from other states fell within the historical "void by statute" exception to interstate marriage recognition recognized in Loughran v. Loughran, 292 U.S. 216 (1934). The Loughran exception had been articulated for polygamous and incestuous marriages, and Senior Deputy Attorney General Reed wrote that "same-sex marriage involves policy determinations every bit as fundamental as those involved in polygamy."

The staff attorney's question had identified a possible tension: § 51-1 also required solemnization, yet North Carolina recognized common-law marriages from states where common-law marriage remained valid (no solemnization required). If the state could yield on solemnization, did it have to yield on the gender requirement as well? The AG drew a line between procedural and substantive aspects of marriage law. Solemnization was procedural, the AG wrote, and the state could choose to yield on procedure while standing firm on a policy issue as substantive as who could marry.

The AG also acknowledged the relevant federal case law from other circuits. The Eleventh Circuit's 1995 decision in Shahar v. Bowers had held that the Georgia AG violated a prospective employee's First Amendment rights when he withdrew an offer after learning of her planned religious same-sex marriage ceremony. But the Eleventh Circuit had specifically noted that the ceremony was a religious matter, not a civil marriage, and the case did not address full faith and credit at all. The AG concluded that Loughran and Pacific Employers controlled.

Currency note

This opinion was issued in 1996. The analysis it provides is no longer the law of North Carolina or of the United States.

The legal landscape has since changed completely. In 2012, North Carolina voters approved a state constitutional amendment (Amendment One, codified as N.C. Const. art. XIV, § 6) restricting marriage to a man and a woman; that amendment is the same kind of provision invalidated nationwide three years later. In 2014, a federal district court in General Synod of the United Church of Christ v. Resinger struck down North Carolina's marriage ban, and the state began issuing same-sex marriage licenses in October 2014. In 2015, the United States Supreme Court issued Obergefell v. Hodges, 576 U.S. 644, holding that the Fourteenth Amendment requires every state to license same-sex marriages and recognize same-sex marriages lawfully performed in other states. Obergefell expressly rejected the framework underlying this AG opinion. In 2022, Congress enacted the Respect for Marriage Act, codifying federal recognition of valid out-of-state marriages between two individuals regardless of sex.

Treat this opinion as historical context, not current legal advice. The 1996 AG analysis is preserved here to document what the state's legal position was at the time, not to suggest that any part of it remains operative.

Background and statutory framework

The opinion sits in a specific historical window. In 1993, the Hawaii Supreme Court issued Baehr v. Lewin, 852 P.2d 44, holding that the state's denial of marriage licenses to same-sex couples raised an equal-protection question under the Hawaii Constitution. Baehr was the first state-supreme-court decision to seriously challenge the man-and-woman definition of marriage. The decision triggered a wave of legislative responses across the country, as state lawmakers anticipated that Hawaii might issue same-sex marriage licenses and that couples married in Hawaii would seek recognition in their home states.

By spring 1996, when this opinion was issued, several states had already enacted statutes declaring same-sex marriages from other states void. Others were debating bills. The federal Defense of Marriage Act would be introduced in May 1996 and signed into law in September 1996. DOMA's section 2 expressly authorized states to refuse recognition of other-state same-sex marriages, and its section 3 defined "marriage" and "spouse" for all federal purposes as restricted to opposite-sex couples.

§ 51-1 in 1996 read, in relevant part, that the consent of a man and a woman, freely and seriously expressed, with the further requirement of solemnization, constituted a valid marriage in North Carolina. The statute's structure put gender at the front and procedure at the back. The AG's analysis pulled on that structure to argue that the gender requirement was a substantive policy rule the state could enforce against out-of-state marriages, while solemnization was a procedural matter the state could afford to yield on.

The Full Faith and Credit Clause analysis the AG relied on was the standard pre-2015 framework. States historically retained authority to refuse recognition of marriages that violated a strong public policy. Loughran v. Loughran (1934) and Pacific Employers Insurance Co. v. Industrial Accident Commission (1939) were the canonical citations for this proposition. The framework treated marriage as a matter of state law, with each state free to define who could marry within its borders and to refuse recognition of marriages from other states that conflicted with its policy.

This framework collapsed in Obergefell. The Court held that the right to marry, and the right to have one's marriage recognized, is a fundamental liberty protected by the Fourteenth Amendment. State variations are no longer constitutionally permitted.

Common questions

Is this 1996 AG opinion still good law?

No. Obergefell v. Hodges (2015) and General Synod of the UCC v. Resinger (W.D.N.C. 2014) invalidated the legal basis for refusing recognition of same-sex marriages from other states. The AG's 1996 analysis is preserved as historical record only.

Why did the AG draw the line between solemnization and gender?

The opinion treated solemnization as a procedural rule (how marriage is created) and the man-and-woman requirement as a substantive policy rule (who can be married). The AG's framework held that procedure could yield to other states' procedural choices without yielding on substantive policy. Obergefell rejected this framework by holding that the substantive rule itself violated the Fourteenth Amendment.

What was the role of the Defense of Marriage Act?

DOMA was enacted by Congress in September 1996, a few months after this AG opinion. DOMA's section 2 expressly allowed states to refuse to recognize same-sex marriages from other states, codifying the position this AG opinion took. Section 3 of DOMA was struck down in United States v. Windsor, 570 U.S. 744 (2013). Section 2 was effectively superseded by Obergefell in 2015. Congress repealed both sections in the Respect for Marriage Act of 2022.

Does North Carolina still have § 51-1 limiting marriage to a man and a woman?

The statutory text was on the books at the time of this opinion. North Carolina also added a state constitutional amendment in 2012. Both the statute (as so limited) and the amendment are unenforceable under Obergefell. The state issues same-sex marriage licenses and recognizes same-sex marriages performed elsewhere.

Why is this opinion still on the AG's site?

The NC DOJ maintains an archive of historical AG opinions as a public-records resource. Many older opinions reflect law that has since been amended, overruled, or replaced. The archive is not an endorsement of the legal conclusions; it is a historical record.

Source

• Landing page: https://ncdoj.gov/opinions/validity-of-same-sex-marriages-performed-in-other-states-2/

Citations

• N.C.G.S. § 51-1 (1996 version, man-and-woman definition with solemnization)
• Loughran v. Loughran, 292 U.S. 216 (1934)
• Pacific Employers Ins. Co. v. Industrial Acci. Commission, 306 U.S. 493 (1939)
• Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995)
• Obergefell v. Hodges, 576 U.S. 644 (2015) (subsequent decision invalidating the AG's conclusion)

Original opinion text

May 7, 1996

M. Lynn Marshbanks Staff Attorney, Research Division North Carolina General Assembly Suite 545, LOB 300 N. Salisbury St. Raleigh, North Carolina 27603-5925

RE: Advisory Opinion: Validity of Same-Sex Marriages Performed in Other States; N.C.G.S. § 51-1

Dear Lynn:

In your letter of April 12, 1996, you ask whether under current law North Carolina would be required by the full faith and credit clause of the United States Constitution to recognize same-sex marriages that are performed legally in other states.

In your letter, you refer to the United States Supreme Court decision in Loughran v. Loughran, 292 U.S. 216 (1934), which held that a state must recognize marriages from other states as valid unless those marriages are polygamous, incestuous, "or otherwise declared void by statute." You point out that N.C.G.S. § 51-1 provides solely for a marriage between a man and a woman and that this provision may allow North Carolina to refuse to recognize same-sex marriages performed in other states. You are concerned, however, because the statute also requires marriages to be solemnized, and yet North Carolina recognizes common law marriages from other states.

We believe you are correct that North Carolina may refuse to recognize same-sex marriages performed in other states based on N.C.G.S. § 51-1. Same-sex marriage involves policy determinations every bit as fundamental as those involved in polygamy. Solemnization, on the other hand, is purely a procedural matter. Thus, 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 marriages. 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 these cases 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 North Carolina can refuse to recognize same-sex marriages performed pursuant to the laws of other states.

Ann Reed Senior Deputy Attorney General