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Family Law
South Texas College of Law Houston
Paulsen, James W.

Family Law
Professor Paulsen
Spring 2004

I. Constitutional Law and Policy

Limits of State Intervention in the Marriage Relationship

Reynolds v. US
– Polygamy case
o Constitutional for man to be punished for polygamy
o Laws are made for the government of action, and while they CANNOT interfere w/ mere religious belief and opinions, they may with practices
o Plural marriages are NOT allowed in US
– SC
o Reasoning:
§ A patriarchal society tends to lead to an idea of leadership from the top down and discourages democracy. The court equates democracy and monogamy.
§ He knew he was doing something against the law, and he did it anyway. So, he had the requisite intent
§ We cannot engage in polygamy in US today, so think of this as being accurate, good case law.
Rule: The law can’t interfere with the religious beliefs but they can interfere with religious practices that will hurt society.
Rule: When religious beliefs turn into practices that cause overt acts against the goodness of the world, the Govt. can step in and draw the line. Religious beliefs can not be accepted as a justification for performing an overt act that is unlawful.

NOTE: Reynolds
– US has unusual relationship with marriage and Christianity. (Nothing like it in American law.
– Racist flavor in this opinion as well. Only the “Asiatic and African” societies have accepted polygamy
– Court says they are protecting the many innocent victims…women and children here. They say they are victims of polygamy. Is Ms. Reynolds #2 complaining? Is she really a victim? This ruling had a harmful effect on women and children of these polygamists. .
– Marriage is a sacred obligation (p.4), yet you can get married in any religion and you won’t be recognized as being married unless you get license from government. So, is marriage really a religious institution since ceremony alone won’t do it. It’s easy to get a license. Is marriage more sacred or civil? No matter what the rhetoric, it’s more civil. You can get married without the religious component, but you can’t get married without the civil component. No legal incidents come from marriage unless you get the license.
– Which philosopher is this like?
o Devlin- Social Fabric thesis. We are born into society that has certain limitations. (stuck with what we have) (If you don’t like it – move out)
– Basically, uncivilized backwards societies allow polygamy.
o The more civilized a society = more monogamous
– Parade of horribles…is human sacrifice inevitable? What’s the difference conceptually?
o Consent
o Death
– Notice the use of


Notes page 10
1) How do you distinguish Loving and Reynolds?
2) In Texas, as late as 1983, the Attorney’s Generals office rendered a formal opinion to the effect that a Texas Justice of the Peace could NOT constitutionally refuse to perform an interracial marriage
3) 20% today still think it should be illegal
4) Can you have a racist ethnically pure society that works? Yes, but it will catch up with itself. Yes, old civilizations (even America ) have thrived during the racist (slave) days. (Egypt, Biblical Patriates, Greeks). Yes even new societies are doing it (England)

Zablocki v. Redhail
– Person could not get a marriage license b/c of statute.
– Fundamental Right to Marry
o Derived from the Right to Privacy (even though it is not really private(public official, public records)
o Privacy is not an enumerated right, it is a right inferred from other rights.
o Same level as child bearing, procreation, childbirth, and family relationships
o Strict scrutiny applies (NT to further a compelling state interest)