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Due Process Clause prohibits a state from denying, because of inability to pay, access to its courts to individuals who want to divorce.

 Grew out of Griffin v. Illinois, a criminal case decided nearly 30 years before Boddie  Griffin holding: under 14 pay for trial transcript th Amendment a state is prohibited from denying a criminal defendant access to court to appeal a conviction based on inability to • Justice Black: “there should be no ‘invidious discrimination’ in criminal trial procedures because all individuals have a right to court access

 Starting in 1960s, courts have applied Griffin rationale to other aspects of criminal processes • Right to counsel and conviction appeals  Not until Boddie that indigent civil litigants saw access to justice recognized • Arthur LaFrance: “initial inquiry was not whether the problem of costs was important, rather, the question was whether law was favorable” • How can we extend Griffin past criminal law context?

   Due Process Clause went through extraordinary amount of changes before it could pave way for successful access to justice arguments Magna Charta (1216): first document defining power of government and recognizing notions of due process After Civil War: 14 Constitution th Amendment added to • 4 protections: procedural due process, substantive due process, prohibition against vague laws, and vehicle for the incorporation of the Bill of Rights.

 Took years and several cases, notably the Slaughterhouse cases, for incorporation of Bill of Rights’ individual liberties into 14 th Amendment

 Before 14 th Amendment applied to states: essentially state and local govts. were free to violate constitutional rights because of faith in state constitutions and understanding Bill of Rights only applied to federal govt.

 Two types of due process: procedural and substantive • PDP protects individuals from coercive power of govt. by ensuring adjudication processes under valid laws are fair and impartial • SDP protects individuals against majoritarian policy enactments which exceed the limits of governmental authority—that is, SDP deals with liberty interests or the right of people to live without unnecessary and arbitrary government interference, regardless of how fair the process of enforcement actually is

 Courts largely abandoned Lochner era pproach when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract.

• Boddie: revival of substantive due process to strike down state laws  U.S. v. Carolene Products Co.: Today, Court focuses on three types of rights under substantive due process : • rights enumerated in and derived from the first eight amendments in the Bill of Rights; • right to participate in the political process (e.g., the rights of voting, association, and free speech); and • rights of “discrete and insular minorities.”  Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions.   Where right is not a fundamental right, the court applies a rational basis test (rationally related to legitimate govt. purpose) If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. (compelling state interest)

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LaFrance argued both types of due process were violated, but majority clung to substantive due process as basis for their decision

• • Marital institution (right to terminate marriage) Right to petition for redress of grievances (1 st Amendment)

 Right to marry is fundamental and comes from “liberty” provision of Due Process Clause • Loving v. Virginia: “marriage is part of pursuit of happiness and fundamental to existence and survival of man” • Zablocki v. Redhail: state laws that do not unduly burden right to marriage are acceptable  Meyer v. Nebraska: term “liberty” has been interpreted to denote not merely freedom from bodily restraint but also right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, among others

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Justice Douglas’ concurrence in Boddie

• Indigents should be regarded as protected class because “more affluent can obtain a divorce; indigent cannot” 

LaFrance originally argued gendered discrimination since exclusion of filing divorce cases fell disproportionately on women, but this argument fell short

 When the Framers first drafted the Constitution, it had no provision ensuring equal protection.  In 1865, Congress enacted the Equal Protection Clause in order to properly deal with blacks who faced black codes to the disgust of the Southern states. • Black codes prevented blacks from suing, giving evidence, and being witnesses; they received harsher punishment for crimes, etc.

 In 1954, the Court finally used the clause to strike down the separate but equal doctrine in Brown v. Board of Education

 Rests on primary question of whether govt. has a sufficient purpose for its discrimination, and purpose depends largely on type of discrimination involved  Strict scrutiny: race or national origin discrimination involved and can be met if there is a “compelling government purpose”  Intermediate scrutiny: gender or non-marital children discrimination and can be met if discriminatory law is substantially related to an “important government purpose.”  Rational basis: lowest form of scrutiny that applies to equal protection violations, and law must be “rationally related to a compelling governmental purpose.”  Court has held equal protection can apply when the government discriminates against individuals on the basis of exercising a fundamental right

 Welfare recipients, all women, residing in Connecticut who were unable to pay a $60 filing fee to start the process of dissolving their marriages.  Counsel for the appellants was Arthur LaFrance, and counsel for the appellees was Raymond Cannon.

 Received his undergraduate degree from Dartmouth College where he graduated with honors and a distinction in American History.  Graduated from Yale Law School where he was part of the Procedure and Advocacy Division and received numerous moot court and thesis awards.  Since Boddie, visiting professor at schools such as Canterbury University in New Zealand, the University of Houston and Northwestern School of Law in Chicago.  LaFrance has also participated in other public interest litigation, aside from Boddie.

• filed amicus briefs in Oregon v. Ashcroft, a Ninth Circuit and Supreme Court case dealing with assisted suicide .

 “Chief Justice Burger sounded like God”  Arguing before the Supreme Court was the ultimate thrill as a young legal services attorney and then professor  Did not realize case would still be standing 40 years later  Believed he won the case after oral arguments

    Named appellant in the case—was supposed to be Bertha Barker, but LaFrance petitioned to have Boddie’s name first Highly intelligent and witty Worked as a paralegal for LaFrance after Boddie case Children active in law and medical fields • • Daughters are nurses Son, Honorable Reginald Boddie, is currently serving on the New York City Civil Court in Kings County

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Many of the women he represented had already started dating other men who offered to pay their filing fees so the women could divorce their husbands.

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Only two women benefitted from the court’s ruling out of about twenty women that began the litigation with him