Substantive Restrictions on Marriage

Why do we care?

Non-relation restrictions (Incest) What is this substantive restriction

on marriage and what are the variations one might find among the states?

Non-relation restrictions (Incest) How does the state justify this

restriction on marriage? Note the Snyder article on page 8 –

variations on arguing government interest and the role of morality arguments.

Non-relation restrictions (Incest) How could one argue that those

interests are not legitimate state interests or that the substantive restriction is not tailored to meet those interests?

 Loving v. Virginia (1967)

Constitutional Analysis? Equal Protection : Race (rejected argument of equal

treatment as a class and focused on individual choices)

Due Process: Liberty Interest Marriage? Characterized as “a

"basic" civil right of man”

Zablocki v. Redhail (1978)

Describe the Wisconsin Statute:

Court approval required if:Non-custodial parent & EITHER Non-payment of support obligationOR Child would be a “public charge”

Due Process Analysis: 1. Characterize the Right

Is there a fundamental right? Right to marry is of "fundamental

importance“ What are the origins of this right? Right to privacy

Due Process Analysis: 1. What level of

scrutiny? Depends on: Whether the regulation is a

“significant intrusion” on the right to marry

If not, reasonableness If so, "Critical examination"

What is “Critical Examination”? Comparable to strict

scrutiny “Sufficiently

important” state interest

“Closely tailored” to effectuate those interests.

    Equal Protection Justice Powell and Steven’s

preferred analysis

How does the statute fail? Under inclusive: - law doesn't prohibit additional

financial burden Over inclusive: - maybe second spouse will help

pay

Other opinions Stewart (concur): marriage is a privilege Powell (concur): substantially interfere

test is too fuzzy; need to defer to state Stevens (concur): economic status is

key Rehnquest (dissent) - deference to state

Why does Mr. Zablocki care? Legal sex?: "marriage is only

relationship in which the state of Wisconsin allows sexual relations to legally take place“

Practical benefits of marriage? Symbolic benefits of marriage?

News Flash!

Wisconsin v. Oakley Father who has refused to pay

child support can be required to avoid having another child, unless he shows that he can support that child and his current children.

Test your understanding: All persons marrying for the first

time must attend state‑licensed counseling sessions, addressing management of finances and interpersonal relations. Sessions cost $50.00. To obtain license, must have a certificate of completion.

Same-Sex Marriage What is this substantive restriction

on marriage and what are the variations one might find among the states?

Goodridge v. Dept. Public Health

Same-Sex Marriage How does the state justify this

restriction on marriage?

Same-Sex Marriage How could one argue that those

interests are not legitimate state interests or that the substantive restriction is not tailored to meet those interests?

Age restrictions What is this substantive restriction

on marriage and what are the variations one might find among the states?

Age restrictions

Age restrictions How does the state justify this

restriction on marriage?

Age restrictionsn (problem 2-5)

Monogamy requirements What is this substantive restriction

on marriage and what are the variations one might find among the states?

Monogamy How does the state justify this

restriction on marriage?

Monogamy How could one argue that those

interests are not legitimate state interests or that the substantive restriction is not tailored to meet those interests?

Prisoner Marriage Problem 2-6 p. 124

Capacity What are the restrictions? Are there constitutional issues

raised?

Next Class:What Kind of a “Contract” is this

anyway? Text pp. 142-48; Charley v. Fant, 892 S.W.2d 811 (Mo. App. 1995) Mo. Rev. Stat. 451.010

How would you counsel a couple who want to know how marriage will change their obligations?

Read text pp. 870-918