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

Family Law, Prof. Paulsen Spring 2009
Gender, Sex, and Marriage
1.    The Federal-State Relationship
a.          Note:
i.                 Texas family cases were not given access to the Supreme Court of Texas until 1987
b.         Domestic Relations Exception
i.                 Covers only a narrow range of domestic relations issues. The following cases absolutely remain outside of federal jurisdictional bounds:
1.                      Divorce
2.                      Alimony
3.                      Child custody
ii.               Rationale:
1.                      State courts have developed a special proficiency in handling issues that arise in the granting of divorce, alimony, and child custody decrees
2.    Gender Based Laws and the Constitution
a.          History
i.                 Bradwell v. Illinois (1873):
1.                      Background: Female plaintiff suing to gain a license to practice law in Illinois, arguing that, as she is already a member of the Virginia bar, the privileges and immunities clause compels Illinois to grant her reciprocity.
2.                      Holding:
a.    Professional licensure is not a privilege or immunity of citizenship guaranteed by the Constitution.
3.                      Concurring Opinion
a.    “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits if for many of the occupations of civil life.”
b.   “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother.” (Sexist Pig, Justice concurring)
b.         Equal Protection
i.                 Level of Scrutiny for Gender Based Classifications: A “sharper focus” minimum rationality test
1.                      A gender based classification will be upheld if it bears a fair and substantial relationship to the legitimate and important state ends
ii.               Impermissible Gender Based Classifications:
1.                      Generally: A gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny
2.                      Gender based alimony statutes: Orr v. Orr
a.    Providing that husbands, but not wives, may be required to pay alimony upon divorce, violates the equal protection clause of the Fourteenth Amendment
b.   Rationale:
i.            The classification cannot be based on the governmental objective of reinforcing in the state’s citizens the state’s preference for wives having a dependent role to husbands in the allocation of family responsibilities,
ii.          The classification is not substantially related to the important governmental objectives of:
A.                Assisting needy spouses (allegedly by using sex as a proxy for need)
B.               Removing the disparity in economic conditions between men and women (allegedly by compensating women for past discrimination during marriage which leaves them unprepared to support themselves following divorce)
C.               Reasoning:
1.                      Even if sex were a reliable proxy for need, and even if the institution of marriage did discriminate against women, the state already provides individualized hearings at which the parties’ relative financial circumstances are considered and at which it can be determined which women are in fact discriminated against in marriage.
iii.             Permissible Gender Based Classifications
1.                      Generally: Where gender based classification is not invidious, but rather, realistically reflects the fact that the sexes are not similarly situated in certain circumstances
a.    Those that provide for the special problems of women
2.                      Prohibiting males from having sex with a minor female: Michael M v. Superior Court
a.    The state interest in preventing teen pregnancy is important, and the law bears a fair and substantial relationship to that end.
b.   Note: This case relies heavily on the fact that the prohibited activity involves minors. A similar law prohibiting sex between adults would not survive constitutional challenge. See Lawrence v. Texas
3.    Marriage, Intimate Relationships, and the Constitution
a.          History:
i.                 Reynolds v. United States (1878): Polygamy unsuccessfully defended on the grounds of religious beliefs
1.                      “Polygamy leads to the patriarchal principle, which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.”
2.                      To excuse a man’s practices because of his religious beliefs “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself.”
ii.               Historical rationale in prohibiting polygamy:
1.                      Congress is left free to reach actions which were in violation of social duties or subversive of good order
a.    This language is to be expected, because the Utah polygamists exhibited overt “good order,” requiring the prohibitions of those practices interpreted by Congress as “subversive”
iii.             Miscegenation statutes
1.                      In postbellum Texas, a statute permitted retroactive recognition of slave marriages. 3 years later, the Texas Supreme Court held that the statute only applied to marriages between slaves, not between slave and master.
b.         Anti-miscegenation Statutes Held Unconstitutional
i.                 Equal Protection and Level of Constitutional Scrutiny
1.                      The Equal Protection clause of the 14th Amendment “demands that racial classifications be subjected to the most rigid scrutiny”
2.                      If racial classifications are to ever be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14th Amendment to eliminate. See Korematsu v. United States
ii.               Substantive Due Process and Strict Scrutiny
1.                      Marriage is one of the “basic civil rights of man” fundamental to our very existence and survival
2.                      While marriage is a fundamental right, the Supreme Court has applied Constitutional scrutiny with inconsistent intensity.
a.    Generally:
i.            Strict scrutiny applies: Must show a compelling state interest, and the means of pursuing that state interest must be narrowly tailored to the advancement of the state interest
c.          Query: Bridging the rationales justifying the prohibition of polygamy and rejecting the anti-miscegenation statutes
i.                 Does a prohibition on polygamous relationships infringe upon liberty rights?
d.         Restrictions on Marriage
i.                 Child support
1.                      Prohibiting a father from marriage on the grounds of delinquent child support payments is not narrowly tailored to the fulfillment of the state’s interest in compelling child support payments
a.   The statute does not compel payment. It only prevents the delinquent parent from remarrying
2.                      Rationale:
a.    Marriage is a fundamental right
b.   Strict constitutional scrutiny applies:
i.            The state interest must be sufficiently important, and the means closely tailored to the effectuation of those interests
3.                      Texas Law: 2.004(b)(7)
a.    Requires an applicant for a marriage license to state whether he or she is delinquent on child support payments, but does not prohibit a delinquent parent from remarrying
e.         Judicial enforceability of prohibitions against adultery
i.                 General Constitutional Concerns: Two Types of Privacy Interests
1.                      The right to be let alone
a.    Protection of an individual’s interest in avoiding the disclosure of personal information.
b.   Focuses on government action that is intrusive or invasive
2.                      The right to make certain kinds of important decisions and to engage in certain kinds of conduct.
a.    This interest protects individual autonomy in making decisions and conduct relating to marriage, procreation, contraception, family relationships, child rearing, and education.
b.   Concerns decisions or conduct by individuals.
ii.               Adultery is not a fundamental right, as it does not fall under the ambit of Constitutionally protected privacy interests
1.                      However, the government is not free to engage to intrusive investigation methods to determine sexual practices of individuals
iii.             Note: The rationale and precedent that led the City of Sherman v. Henry court to its decision was successfully attacked as it applies to homosexual activity. There remains a question concerning City of Sherman’s validity.
f.           Right to privacy and homosexual conduct
i.                 Lawrence v. Texas: Beginning with “Liberty” and ending with “Freedom”
1.                      “Liberty presumes an autono

at all.
c.    Ergo, one cannot purport to marry if they are already married, because that which they purport to do fails an essential element of the definition.
i.            You can’t squeeze blood out of a beet
iv.              What language could an aspiring polygamist use in a second “celestial” marriage ceremony to avoid criminal penalties?
1.                      Avoid any intimation to legal status as husband and wife
v.                Religious practice argument rejected
1.                      The Utah Supreme Court rejected defendant’s argument that the celestial marriage was an exercise of his religious freedom. The court rejected the argument, relying on the rationale of Reynolds, supra.
d.         “Similar to Marriage” and Domestic Partnerships
i.                 Michigan: Meat Chicken public employers must not recognize domestic partnerships for any purpose
1.                      Michigan’s marriage amendment prohibits public employers from offering domestic partner benefits because granting domestic partner benefits is sufficiently similar to marriage.
a.    “Similar,” means having a likeness or resemblance, especially in a general way; having qualities in common.
b.   Domestic partner benefits would be legal arrangements that encroach upon territory reserved for married couples as defined in the Michigan Constitution
c.    A union does not have to possess all the same legal rights and responsibilities that result from a marriage in order to constitute a union similar to that of marriage.
e.         “Similar to Marriage” and Covenant Marriages
i.                 Covenant Marriage defined:
1.                      A legally distinct kind of marriage, in which the marrying couple agree to obtain pre-marital counseling and accept more limited grounds for divorce.
a.    An opt-in super marriage
ii.               The Defense of Marriage Act likely sets a lower limit for the definition of marriage, and any arrangements that comport with that lower limit while imposing additional strictures is probably not prohibited by the Act.
iii.             Texas is not a covenant marriage jurisdiction
f.           Transgender issues
i.                 Issue: Transgendered woman (post-op) marries a man, who dies as a result of alleged medical malpractice. Does the transgendered wife have standing to sue as a wrongful death beneficiary?
1.                      Held: No.
a.    The court is bound by statutory constraints, which define marriage as between a man and a woman.
b.   Alteration of a birth certificate is not sufficient to overcome a person’s internal and chromosomal gender.
i.            A trial court’s decree to alter a birth certificate is merely ministerial, and involves no findings of fact.
ii.          A transgendered person does not have the internal organs nor the chromosomes of the gender they purport to be
iii.         Any characteristics of the transgendered person’s purported gender are medically supplied
ii.               New Jersey: The only state to recognize transgender rights as being distinct from same-sex unions.
1.                      If the psychological choice of a person is medically sound, not a mere whim, and irreversible sex reassignment surgery has been performed, society has no right to prohibit the transsexual from leading a normal life.
2.                      A transsexual person is not merely an exhibit in a circus side show. The fact of a person’s transsexuality does no harm to society. 
3.                      While the entire area of transsexuals is repugnant to the nature of many persons within our society, this should not govern the legal acceptance of a fact.