North Carolina's interest was to preserve a bare marital status as to two persons who sought a divorce and two others who had not objected to it. "It is an extraordinary thing for a State to procure a retroactive invalidation of a divorce decree, and then punish one of its citizens for conduct authorized by that decree, when it had never been challenged by either of the people most immediately interested in it." The State here did not sue to protect any North Carolina property rights nor to obtain support for deserted families. "I would not permit such an attenuated state interest to override the Full Faith and Credit Clause * * *" (325 U.S. 226, 262-267 (1945)).
The unsettling effect of this decision was expressed statistically by Justice Black as follows: "Statistics indicate that approximately five million divorced persons are scattered throughout the forty-eight States. More than 85% of these divorces were granted in uncontested proceedings. Not one of this latter group can now retain any feeling of security in his divorce decree. Ever present will be the danger of criminal prosecution and harassment." Ibid. 262-263.
As to the conclusion that the Supreme Court as well as the State courts should reach in like situations, Justice Black asserted that "until Congress has commanded a different 'effect' for divorces granted on a short sojourn within a State, we should stay our hands. * * * If we follow that course, North Carolina cannot be permitted to disregard the Nevada decrees without passing upon the 'faith and credit' which Nevada itself would give to them under its own 'law or usage.' * * * For in Nevada, even its Attorney General could not have obtained a cancellation of the decree * * *." Ibid. 267, 268.
The reader should take note of the effect in some of the above opinions to weigh competing interests against one another and the implication that the court's relation to the full faith and credit clause is that of an arbitral tribunal rather than of a court in the conventional sense of a body whose duty is to maintain an established rule of law.
[62] 325 U.S. 279 (1945).
[63] Ibid. 281-283.
[64] 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334 U.S. 555 (1948).
[65] Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945).
[66] Because the record, in his opinion, did not make it clear whether New York "law" held that no "ex parte" divorce decree could terminate a prior New York separate maintenance decree, or merely that no "ex parte" decree of divorce of another State could, Justice Frankfurter dissented and recommended that the case be remanded for clarification. Justice Jackson dissented on the ground that under New York law, a New York divorce would terminate the wife's right to alimony; and if the Nevada decree is good, it is entitled to no less effect in New York than a local decree. However, for reasons stated in his dissent in the First Williams Case, 317 U.S. 287, he would prefer not to give standing to constructive service divorces obtained on short residence. 334 U.S. 541, 549-554 (1948). These two Justices filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557 (1948).
[67] 334 U.S. 343 (1948).