Entering Into Marriage

1. Entering Into Marriage Procedural, Substantive and Contractual Requirements

2. Procedural requirements: • Licensure • Application • Testing • Fees • Waiting Periods • Solemnization

3. What are the consequences of failure to comply?

4. Status of Marriage

5. Marriage and the Constitution Analyzing Substantive Restrictions

6. Loving v. Virginia (1967)

7. Constitutional Analysis? • Equal Protection : Race • State argued that the statute did not violate equal protection since both parties were treated the same. • Court rejected using “strict scrutiny” test applicable to racial classifications. • Due Process: Liberty Interest • Marriage? Characterized as “a "basic" civil right of man”

8. Zablocki v. Redhail (1978)

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

10. 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

11. 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"

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

13. What did the State offer as Rationales

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

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. Testing the limits • Missouri prison regulations provide that in order for an inmate to marry, permission must be granted by the superintendant and only for “compelling reasons”. • Is it constitutional?

17. Testing the Limits • Page 184 Problem 2

18. Monogamy

19. Monogamy requirements • What is this substantive restriction on marriage and what are the variations one might find among the states? • How does the state justify this restriction on marriage?

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

21. Variations • Page 195 Problems 1-2

22. Age restrictions

23. Age restrictions • How does the state justify this restriction on marriage? • What arguments would you make ion behalf of Barbara Haven?

24. Same-sex Marriage

25. Historical Analysis • Bowers v. Hardwick ( US Supreme Court 1986) – Upholding Texas sodomy statute • Issue: Do homosexuals have a constitutional right to engage in sodomy? • Implication for same sex-marriage debate?

26. Baehr v. Lewin (HI 1993) • Hawaii Constitution Equal Rights Amendment – explicit protection of gender equality • Is ban an impermissible sex-based classification? • Level of scrutiny?

27. Baehr v. Miike (HI 1996) • After remand at which state was unable to show compelling interest, court invalidates ban. • Reversed by Constitutional amendment in 1998 • “Reciprocal Beneficiaries” statute enacted.

28. Baker v. Vermont (VT 1999) • Vermont Constitution includes a “common benefit” clause. • Individuals entitled to same public benefits and protections • Can be satisfied by a “Civil Union” statute that affords equal benefits

29. Lawrence v. Texas ( US 2003) • Overturns Bowers v. Hardwick • How is issue framed? • Implications for the same-sex debate?

30. Goodridge v. DPH ( MA 2004) • Scope of Mass. Constitution? • What scope of review does the court use? • Why? • What are the state’s three stated rationale’s?

31. Goodridge (con’t) • How does court respond to the state’s position re: • Procreation? • Protecting “optimal” child-rearing unit? • Economic interest? • How does court respond to concerns raised by the amici?

32. Goodridge ( con’t) • Dissenting opinion of Spina – How does he view equal protection and due process claims? • Sosman, dissenting – Is the state’s reasoning regarding children, rational? • What of the legislature’s attempt to establish “civil unions” ?

33. Morrison v. Sadler ( IN App. 2005) • State’s ban is rationally related to protecting the interest of children. • Individuals in same-sex relationships demonstrate a significant commitment to children by overcoming barriers to have them. • Heterosexual couples who can procreate easily need government benefits as an incentive to stabilize life for children.

34. Hernandez v. Robles ( NY 2006) • The all-important “framing” – the right to marry vs. the right to marry someone of the same sex ( remember Bowers & Lawrence) • State free to define who receives benefits of marriage this is not a denial of the right to marry • Distinguishing Loving – this is not just about animus towards a group ( based on race in Loving or prohibited by Romers), there is more to it, it is about tradition. • Genders treated the same, studies re: kids too new to form a basis

35. Anderson v. King County (WA 2006) • Challenge to state’s DOMA • Again no right to same-sex marriage ( the framing issue) • In spite of ERA, a rejection of the Loving rationale and acceptance of “both men and women treated the same”. • Homosexuality is not a suspect class

36. Lewis v. Harris ( NJ 2006) • State Constitution's equal protection clause requires equal benefits ( similar to VT’s “common benefits” • Distinction between the “right to marry” and the rights of marriage” • Domestic Partnership law satisfies constitutional requirements.

37. Conaway v. Dean ( MD App. 2007) • Discrimination is not on the basis of sex but on sexual orientation which does not trigger strict scrutiny • Right to same-sex marriage is not fundamental • Fostering procreation is a rational state interest

38. In re Marriage Cases ( CA 2008) • Does the state constitution prohibit the state from establishing a scheme that allows all couples to enter into a relationship that affords all the significant legal rights and responsibilities usually associated with marriage but where an opposite sex couple union is called a marriage and a same sex a civil union? • Similar to Mass. advisory opinion

39. In re Marriage Cases ( con’t) • Struck down antimiscegenation statutes long before Loving holding that the state constitutional right to marry includes the opportunity of an individual to establish – with THE person he/she has chosen- a relationship that affords all the rights and responsibilities of marriage. • Equal dignity and respect requires that they be treated the same

40. In re Marriage Cases (con’t) • Discrimination based on sexual orientation is subject to strict scrutiny. • State's interest in retaining the traditional definition of marriage is not compelling because 1) not necessary to protect opposite-sex couples rights in marriage; 2) Harms same-sex couples ( not equal dignity); 3) reflects official view that same-sex is of lesser stature and 4) perpetuates idea that it is permissible to treat gays and lesbians less favorably.

41. Updates • Massachusetts legislature voted to allow non-residents to enter into same-sex marriages there ( July 2008) • New York will recognize same-sex marriages that are validly entered into in states that permit them • Spain, Canada and South Africa have joined the Netherlands and Belgium in authorizing same-sex marriages.

42. Next Chapter • CT Supreme Court considering question (Kerrigan v. CDMH argued May 2007). • California voters will decide whether to overturn Supreme Court decision by endorsing Proposition 8 in November.

43. Does Contract Law Apply to Marriage? • What differences are there between the marriage contract and others?

44. Essentials of Contract Agreement (Consent) Consideration (Mutual Promises)

45. Grounds for Attacking Consent • Lack of Capacity • Failure of Consent (e.g., Fraud, Duress) • Scope of Consent

46. Lack of Capacity • Age • Mental Disability • Intoxication

47. Failure of Consent • Fraud- What is the standard? • What type of representation is required? • Blair v. Blair • What is result?

48. Failure of consent?Britney Spears' 55-hour marriage annulled • In explaining the circumstances of the bizarre marriage, Chesnoff said Monday that the couple did not realize the marriage was legally binding at the time they wed. He said the pair did, in fact, secure a Clark County marriage license and had the wedding at the chapel, but they mistakenly thought the marriage would be binding only if they returned to the county courthouse and filed their certificate of marriage and license with the court.

49. Failure of Consent • Duress • Scope of Consent? Limited Purpose Marriage

50. Conflict of laws • General Rule: A marriage valid where entered will be recognized • Exceptions: Public policy Statutory exception ( eg. DOMA) Full Faith & Credit only applies to judicial decrees ( eg. Adoption)