Narrative - Page 2

Sharing Lights · #11 (**permalink**) 04-03-2008, 10:25 PM

Family Law

- emphasis on securing rts of parties, children & society rather than certainty/predictibility

I. Wife and Husband
A. Regulation of Marriage
1. Substantive Requirements for Entry into Marriage

a. one at a time (polygamy)
1. legitimization encourages having more kids; but more cost-effective if can combine child care
2. Reynolds - polygamy not allowed b/c traditionally not allowed in Europe (OK in Asia and Africa)
3. divorice like serial polygamy except rts cut off each time
4. Campbell: culture is product of confluence of rational decisions over time
- but circs change: contraception, working women, divorice allowed
5. Potter v. Murray City - fired as police officer b/c had multiple wives; ct said OK

b. of different sexes (same sex marriages)
1. Baehr v. Lewin - same-sex marriage allowed b/c sex discrim if not; OK under Hawaii equal protection cl (not necess under fed one); ct said burden on st to prove why same-sex marriages shouldn’t be permitted
2. procreation
3. Bowers v. Hardwick - st crim statute prohibiting same-sex relations is Const.; based on history/morality; consumation illegal in 1/2 of states so same-sex marriage not even issue
4. Singer v. Hara - same sex not even in def of marriage b/c by def is heterosexual
5. Baker v. Nelson - ct says county clerk not reqd to issue marriage license to 2 gay men

c. of the same race
1. Loving v. VA - lower cts said not race-based classif b/c whites couldn’t marry blacks either; SC said was unconst discrim
a. racial classification unconstitutional
b. established marriage as const. fundamental rt
- would need compelling govt int to restrict, & there isn’t one
- even prisoners have Const rt to marry

d. “rationality”(equal protection) and “morality”
see 301/337/Baehr reasons for marriage
- domestic partnership ordinances
- recognize domestic partners & give certain rts (insurance)

e. unrelated by blood
1. genetic issues
- some states allow if past childbearing age
2. allowed annulmt (when no divorice) b/c everyone was someone’s cousin
3. social argument - makes sexual imposition more likely
4. other reasons
a. religious reasons
b. protection of family unit
c. community norms

f. unrelated by marriage or adoption (affinity prohibition)
1. genetic restrictions don’t always apply, but social (imposition) does
2. most sts have dropped “by marriage” restriction; kept by adoption
3. Isreal v. Allen - SC CO said bro & sis (by earlier marriage) could marry

g. of suitable age
1. pregnancy
a. early exception
b. UMDA says not decisive factor
2. age limits
a. 16 absolute minimum
b. 16-18 w/parental consent
c. adults OK
3. Friedrich v. Katz - law had higher min age for man than woman, traditionally b/c had to support wife; reversed on appeal b/c differential treatment
4. lack of parental consent
a. may be void at inception but ratified by continuing after majority
b. if don’t allow, would cause increase in # of illegitmate kids

h. with “good” genes?
- generally not used b/c gets into genetic engineering
- mental capacity to consent

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