6. What is the “Privileges and Immunities Clause”?
Article IV, Section 2 states that, “Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” This clause seeks to avoid individuals gaining an advantage or being discriminated against by a state government simply because of the person’s state or residency. States may discriminate against members of other states in favor of its residents if there is a “substantial justification”. Substantial is a floating standard that may be subject to challenge by a court.
• Note: Try to think about the methods that a state could treat members of another state differently, such as through voting rights, ownership of property, taxation, etc.
• Example: State A cannot charge businesses organized in State B a higher rate of sales taxation on sales carried out in State A. This would be an unconstitutional privilege in favor of members of State A.
• Discussion: Can you think of a way in which a state has discriminated against citizens of another state that was held invalid by the court? What about a situation where one state discriminates against the citizens of another state and it is held to be valid? (Hint: If you are in a public university, think about your tuition payments.)
• Practice Question: Ellen and Gina are romantically involved and decide to marry in the state of Vermont. Soon after marrying, Ellen’s employer transfers her to its office in Alabama. Alabama does not recognize same-sex marriage. Because of the transfer, Alabama state law does not recognize any of Gina’s rights as Ellen’s spouse. This becomes particularly important with regard to state insurance, real property, and inheritance law. Do you see any constitutional law issue?