Transcript Document 7749010

Review: Themes of Family Law
Part I: Substantive Regulation of
Marriage
January 15, 2004
Review: Themes of Family Law
Who governs: state vs. federal
How: discretions vs. rules
Why: protect family unit
protect vulnerable family members
protect state from economic burden
Limits: Constitutional
1) Right of privacy (variety of sources/due
process) protects married couples’ intimate
decisions/Griswold
2) Due process/equal protection clauses protects
same decisions by individuals
(unmarried)/Eisenstadt
3) Due process/family privacy also protects
against state interference with parents’
decisions Meyer/Pierce
Who May Marry: Limits on Substantive
Regulation
Loving at 153
Equal Protection Grounds:
“At the very least, the Equal Protection Clause
demands that racial classifications, especially
suspect in criminal statutes, be subjected to
the “most rigid scrutiny,” and, if they are ever
to be upheld, they must be shown to be
necessary to the accomplishment of some
permissible state objective.”
Loving at 154
Due Process Grounds:
“Marriage is one of the ‘basic civil rights of
man,’ fundamental to our very existence and
survival. … To deny this fundamental freedom on
so unsupportable a basis as the racial
classifications embodied in these statutes,
classifications so directly subversive of the
principle of equality at the heart of the
Fourteenth Amendment, is surely to deprive all
the State’s citizens of liberty without due process
of law.”
Zablocki at 158-159:
“By reaffirming the fundamental…right to marry, we do
not mean to suggest that every state regulation that
relates in any way to the incidents…of marriage must
be subjected to rigorous scrutiny…Reasonable
regulations that do not significantly interfere with
decisions to enter in the marital relationship may
legitimately be imposed. …The [Wisconsin statute],
however, clearly does interfere directly and
substantially with the right to marry.”
Fn 12 direct = “legal obstacle”
substantial = “significantly discourage”
or preclude
Test after Loving/Zablocki:
1) Does statute interfere with fundamental right to
marry?
2) If so, direct/substantial interference?
3) If so:
a) substantial/compelling state interests?
b) statute narrowly tailored to meet
those interests?
(if indirect interference:valid purpose/
rational relationship)