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Review: Themes of Family Law Part I: Substantive Regulation of Marriage

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

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Review: Themes of Family Law Part I: Substantive Regulation of Marriage

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  1. Review: Themes of Family LawPart I: Substantive Regulation of Marriage January 15, 2004

  2. 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

  3. Limits: Constitutional • Right of privacy (variety of sources/due process) protects married couples’ intimate decisions/Griswold • Due process/equal protection clauses protects same decisions by individuals (unmarried)/Eisenstadt • Due process/family privacy also protects against state interference with parents’ decisions Meyer/Pierce

  4. Who May Marry: Limits on Substantive Regulation

  5. 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.”

  6. Loving at 154Due Process Grounds: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. … To deny this fundamentalfreedom 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.”

  7. 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

  8. Test after Loving/Zablocki: • Does statute interfere with fundamental right to marry? • If so, direct/substantial interference? • If so: a) substantial/compelling state interests? b) statute narrowly tailored to meet those interests? (if indirect interference:valid purpose/ rational relationship)

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