In 1996, did North Carolina have to recognize a same-sex marriage that was legally performed in another state under the U.S. Constitution's full-faith-and-credit clause?
Plain-English summary
Rep. Henry Aldridge asked the NC AG in 1996 whether the full faith and credit clause of the U.S. Constitution required North Carolina to recognize same-sex marriages performed in other states. The context was political: Hawaii's Baehr v. Lewin litigation in 1993 had raised the possibility that Hawaii might be the first state to recognize same-sex marriage, and other states were beginning to consider how they would respond if forced to honor a Hawaiian (or other) same-sex marriage.
Senior Deputy AG Ann Reed answered no. Her reasoning anchored on the U.S. Supreme Court's 1934 decision in Loughran v. Loughran, 292 U.S. 216, which had said that a state must recognize marriages from other states "unless those marriages are polygamous, incestuous, 'or otherwise declared void by statute.'" The AG read N.C. Gen. Stat. § 51-1 (defining marriage as solely between a man and a woman) as a statutory declaration of voidness that placed same-sex marriages squarely within the Loughran exception.
The opinion addressed one possible objection: NC recognized common-law marriages from other states, even though § 51-1 also required solemnization. Wasn't that inconsistent? No, the AG said: solemnization was a procedural requirement, while the male-female composition of marriage was a "fundamental policy determination" on par with polygamy and incest. A state could yield on the procedural issue while standing firm on the policy issue.
The AG also surveyed federal case law. Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995), had ruled against the Georgia AG on a First Amendment ground when he withdrew an employment offer to a woman who had announced plans for a religious same-sex marriage. The AG read Shahar narrowly: the Eleventh Circuit had stressed that Shahar's "marriage" was religious, not civil, and the decision did not address full faith and credit.
The opinion concludes that under existing law, NC could refuse to recognize out-of-state same-sex marriages. Pacific Employers supplied the analytical frame: "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."
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
This opinion has been superseded by federal constitutional law. In United States v. Windsor, 570 U.S. 744 (2013), the Supreme Court struck down section 3 of the Defense of Marriage Act. In Obergefell v. Hodges, 576 U.S. 644 (2015), the Court held that the Fourteenth Amendment requires states to license same-sex marriages and to recognize same-sex marriages lawfully performed in other states. NC's statutory ban on same-sex marriage (§ 51-1 as amended and the 2012 Amendment One constitutional provision) and the analysis in this 1996 opinion no longer have legal force. The opinion remains useful as a historical record of how NC's law office understood the pre-Windsor, pre-Obergefell framework.
Background and statutory framework
G.S. § 51-1 in 1996 read, in substance, that marriage was solely between a man and a woman. NC later amended § 51-1A and § 51-1.2 (2012, by initiated constitutional Amendment One) to add a constitutional prohibition on same-sex civil unions and marriages. All of those provisions were rendered unenforceable by Obergefell in 2015.
The Loughran v. Loughran framework set the analytical baseline that the 1996 opinion used. Under Loughran, a state was generally required to recognize out-of-state marriages but could refuse to do so when the marriage was "polygamous, incestuous, or otherwise declared void by statute." The 1996 opinion read § 51-1 as a § 51-1 "or otherwise declared void by statute" trigger. After Obergefell, the Loughran exception cannot be used to deny recognition of a same-sex marriage, because the Fourteenth Amendment supplies a constitutional floor that overrides any state-level statutory voidness declaration.
The federal Defense of Marriage Act (DOMA, 1996) intersected with the issue but is not cited in this opinion. DOMA section 2 purported to authorize states to refuse to recognize same-sex marriages from other states; section 3 defined "marriage" and "spouse" for federal purposes as opposite-sex only. Windsor invalidated section 3 in 2013; Obergefell effectively neutralized section 2 in 2015.
Common questions
Is this opinion still in force?
No. Obergefell v. Hodges, 576 U.S. 644 (2015), constitutionalized the right to same-sex marriage and required all states to recognize valid same-sex marriages from other states. The conclusion in this 1996 opinion (that NC may refuse to recognize) is no longer good law.
What does the opinion show about how lawyers were thinking about full faith and credit in the mid-1990s?
It shows the standard reading: full faith and credit applied to marriage with the long-recognized "polygamous, incestuous, or otherwise declared void by statute" exception. State AGs and family-law practitioners were generally confident that Loughran and Pacific Employers allowed states to opt out of recognition through a statutory voidness declaration. Obergefell did not unwind that family-law framework; it added a constitutional overlay that made same-sex marriages no longer eligible for the Loughran opt-out.
Why is Shahar v. Bowers mentioned?
The 1996 opinion surveyed federal case law to confirm no decision had invalidated a state's refusal to recognize same-sex marriages on full-faith-and-credit grounds. Shahar v. Bowers had ruled against the Georgia AG, but on a narrow First Amendment ground tied to a religious commitment ceremony, not on a full-faith-and-credit theory. The AG read Shahar as not undermining its conclusion.
What was happening in Hawaii that prompted this question?
In May 1993, the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530, ruled that the state's prohibition on same-sex marriage was subject to strict scrutiny under the Hawaii Constitution's equal-protection clause and remanded for trial. The decision created a serious possibility that Hawaii would become the first state to license same-sex marriages, and other state legislatures and AG offices began thinking through the recognition question. Hawaii later amended its state constitution in 1998 to authorize the legislature to restrict marriage to opposite-sex couples, but the 1993-1996 window produced a wave of state-level legal analysis like this 1996 NC opinion.
Where can a researcher find later NC same-sex marriage AG materials?
The 2012 Amendment One litigation (General Synod of the United Church of Christ v. Cooper, 4th Cir. 2014, and the Bostic-aligned NC federal challenges) produced extensive federal-court records that have superseded any state AG analysis. After Obergefell, NC began issuing same-sex marriage licenses pursuant to federal mandate.
Source
Citations
- N.C. Gen. Stat. § 51-1
- 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)
Original opinion text
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 same-sex 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