Exam 2 Flashcards
Family Law (Marriage)
Eisenstadt v Baird
- A professor was lecturing about contraceptives to university students in Mass. and then distributed contraceptive foam to a student after the lecture
- Law said married people could get contraceptives but only from a doctor or druggist with prescription, single people could not get contraceptives, and anyone could receive contraceptives to prevent the spread of diseases
. - Public Policy was to prevent pre-martial sex
- The court said if the right to privacy means
anything it is the right of individual, married, or single to be free from unwarranted government intrusion into matters so fundamentally affecting a person decision to bear or beget a child.
Licensing
- Vital Statistics is to keep up with who is married, born, and dead.
- Licensing provides objective proof of marriage to prevent fraud.
- Public health measures is to prevent infectious diseases from kids and spouses
- Decrease the divorce rate by causing a delay preventing hasty and ill advise marriages.
- Assist in the enforcement of other marriage laws such as age and blood relation.
Solemnization 1
A marriage solemnized by someone who is not qualified and the couple has a license; the marriage is going to be valid provided that both spouses were unaware of the disqualification. Public Policy say we want to be able to trust those who hold public office really hold public office.
Solemnization 2
A valid ceremony of marriage without a license will be valid depends license statutory in the state. Some states say no marriage is valid without a licence and where there is no law the court would generally rule in favor of the marriage because public policy encourages marriage.
Elements of Common Law Marriage
- Intent - there has to be and agreement to be married at the present time. There has to be a moment of contractual agreement ( The I Do in the marriage ceremony, when said let’s be spouses)
- Cohabitation - the couples must live together as husband and wife
- Public Recognition - have to hold out to the public that you are man and wife
Duration is not a requirement because there was a case that showed a marriage that lasted for 3 days.
Critics of CLM
- Condones a vice, approve of living together without the blessing of God or State.
- Debases ceremonial marriage
- Encourages fraudulent assertions of marriage after the parties dies
- Frustrates the state interest in formality requirements; like getting a licences
Putative Spouse Doctrine
- The court will make this a marriage
1. Where there is fraud - When one partner says to the other that their divorce
2. When solemnization in not good ( no valid preacher) - Both parties have to be unaware - This is a saving device
- The court can only create a putative spouse agreement if there is a law for it
- In order to be a putative spouse there has to be an innocent and reasonable belief that the ceremonial marriage was valid and no legal indictment
Defacto Marriage
- In these marriages both parties know their not married.
- The courts allows the parties to be married for the sake of the kids even a divorce.
Policy Behind Device Marriages
- The state has no interest in discouraging non marital behavior, do not want to reward people who don’t get married civilly. Looks prospectively, want to discourage people from these relationships because it takes up the court time.
- State has no interest in protecting people who have marriage like relationships. Looks retrospectively, don’t want to punish the people who do it right. We’ll save the marriage even it wasn’t valid and create a saving device. They have something that looks like a marriage.
Zablocki v Redhail
- Non-custodial father wants to get married but the court said No
- Law said non-custodial fathers with child support obligations can not marry with out the court permission. A non-custodial father can get permission if they were current on child support and the child was not on welfare
- Public Policy was to deter dead beat fathers
- Court said marriage is a fundamental right and there was an equal protection issue which created 2 class; fathers who have to pay for child support and all other fathers. Even if the father pays they would never meet the requirements of the law because they could pay child support and the child can still be on welfare.
Advocates of Same Sex Marriage argued…
- To prohibit same sex marriage violates the establishment clause of the federal constitution adopting jedo-christian principals from the bible
- The 14 amendment of the federal constitution; creating 2 classes of people and due process; the U.S.S.C has not extended the right to marry as being a fundamental right for gays, on a national level only for straight people
- State Equal rights amendment = the state equal rights act bar prohibits classification based on sex. Some states has a bar that says only men and women can get married.
Baehr v Lewin
- Nina Baehr and her girlfriend along with 3 other couples wanted to be married in the state of Hawaii
- Hawiaii law said people are entitled to equal protection regardless of race, sex, and ancestor
- Public Policy said the traditional family will be broken
- Court said they had an equal protection problem and because gender and sex is a suspect classification the state of Hawaii has to show a compelling gov’t interest in why guys can’t marry, and Hawaii had no compelling interest
- The people of in DC became worried because of the Full Faith and Credit clause
Full Faith and Credit Clause
the judgement, decrees, and public order of one state has to be recognized in every state. This clause is what makes us a nation.
DOMA = Difference of Marriage Ace
- legal union = 1 man and 1 woman
- No state has to recognize same sex marriages from other states
- No federal benefits allowed for same sex couples such as; no immigration benefits, no martial tax deductions on federal level, and no estate deduction
This was the reaction to Baehr v Lewin because of FF&CC
Mass
- Mass. is the first state in the US to legalize same sex marriages.
- After that some state to recognize same sex marriages.
