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Substantive Restrictions on Marriage

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).

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Substantive Restrictions on Marriage

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  1. Substantive Restrictions on Marriage Why do we care?

  2. Non-relation restrictions (Incest) • What is this substantive restriction on marriage and what are the variations one might find among the states?

  3. 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.

  4. 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?

  5. Loving v. Virginia (1967)

  6. 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”

  7. Zablocki v. Redhail (1978)

  8. Describe the Wisconsin Statute: Court approval required if: Non-custodial parent & EITHER • Non-payment of support obligation OR • Child would be a “public charge”

  9. 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

  10. 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"

  11. What is “Critical Examination”? • Comparable to strict scrutiny • “Sufficiently important” state interest • “Closely tailored” to effectuate those interests.

  12.     Equal Protection • Justice Powell and Steven’s preferred analysis

  13. How does the statute fail? • Under inclusive: • - law doesn't prohibit additional financial burden • Over inclusive: • - maybe second spouse will help pay

  14. 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

  15. 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?

  16. 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.

  17. 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.

  18. Same-Sex Marriage • What is this substantive restriction on marriage and what are the variations one might find among the states?

  19. Goodridge v. Dept. Public Health

  20. Same-Sex Marriage • How does the state justify this restriction on marriage?

  21. 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?

  22. Age restrictions • What is this substantive restriction on marriage and what are the variations one might find among the states?

  23. Age restrictions

  24. Age restrictions • How does the state justify this restriction on marriage?

  25. Age restrictions • (problem 2-5)

  26. Monogamy requirements • What is this substantive restriction on marriage and what are the variations one might find among the states?

  27. Monogamy • How does the state justify this restriction on marriage?

  28. 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?

  29. Prisoner Marriage • Problem 2-6 p. 124

  30. Capacity • What are the restrictions? • Are there constitutional issues raised?

  31. 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

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