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Family Law
Wayne State University Law School
Morrison, Adele M.

I. What is a family?

Baker v State 1999 Vermont pg 10
Same sex marriage or civil unions required by state constitution
· Vermont legislature was ordered to either allow same-sex marriages, or implement an alternative legal mechanism according similar rights. In 2000, the Legislature complied by instituting civil unions for same-sex couples.
· Does denying a marriage license violate state constitution? YES
· Question is whether prohibition of same-sex marriage amounts to denial of common benefits.
· Three same-sex couples who applied for and were denied marriage licenses
· Vermont Constitution’s Common Benefits Clause

History of marriage
• public ordering of a private r-ship=marriage – state involved.
• public affirmation is Necessary
• Need a civil marriage ceremony
• Other people–witnessing the marriage–
• Bride and groom making a contract; K witnessed by friends and family (agent);

The state involved in marrriage (it decides who can get married) these rules are subject to the us constitution.

Marriage bars: (Unconstitutional restrictions)
– Race,(loving)
– Incarceration – Turner (prisoner status) (reasonable restriction are okay)
– Class restriction/ status–bar cannot be based on a financial obligation. (Zablocki)

Restriction that are reasonable & constitutional
– Incest – Singh v. singh
– polygamy – Bronson
– age – moe -parent consent
– Same sex marriage

Marriage: slide pg 57
1. Restrictions on Marriage
Equal Protection Analysis
o Id the relevant classifications
o Determine the standard of review
o Strict scrutiny
§ Suspect classification
§ Fundamental right/liberty
o Evaluate purpose according to test

3 step process of EP analysis
o ID the relevant classification
o Determine the standard of review
o Evaluate purpose according to test

Loving v Virginia pg 59
Miscegenation statute/EP – racial discrimination
Marriage is fundamental freedom (still don’t say right)
Restricting marriage based on race is struck down.
· Statutes violate EP of the 14th amendment; strict scrutiny for invidious discrimination; fundamental right; no legitimate overriding purpose
· Also deprive the Lovings of liberty w/o DP 14th amendment
· VA statute made it illegal to marry between races and set punishment (white man married black woman)

Zablocki v Redhail WI 1978 pg 62 TEST
Can’t use marriage as a collection device for child support payments (restricted poor from marriage)
Marriage is fundamental importance (still don’t say right)
· Std Strict scrutiny b/c marriage is fundamental right; statute is not narrowly tailored to meet the goals of children being supported or more kids being created that aren’t supported
· Under-inclusive re getting parents to support their children from a prior marriage, not closely tailored
· EP violation
Test here:
· When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests pg 65
· Every reg by the state that relates in any way to the incidents or prereqs to marriage do not all require strict scrutiny
From slide 5/5
· Zablocik test: Reasonable regulations do Not substantially interfere with the decision to marry.
· Is it Direct OR Indirect restriction to marry. (ex. indirect – age restriction or incest)

o Classification here interferes DIRECTLY and SUBSTANTIALLY with the right to marry
· Cannot pay child support or behind cannot get married – Criminal penalties if you marry w/o permission.

Turner v Safely 1987 Justice O’Connor pg 71
Marriage is a fundamental right for prisoners too: strict scrutiny
Applied Zabloki test
· Statute is not reasonably related to the interests presented by prison: (security and rehab (marriage = support system)
· Time and place regs for marriage are okay – indirect restriction
· Missouri reg permits an inmate to marry only in compelling circumstances which would be a baby on the way; and must get permission.

Note: safety and security concern-show really was one and there was significant security interest. Legitimate concerns could have upheld the regulation.

In the Notes pg 74
· Four factors of reasonableness in Langone v Coughlin
o The statute not reasonably related to the stated goal
o No alt means for the person to be married
o With deference to prison, court found that accommodating the inmates right to marry would not jeopardize the security
o No ready alternative to the fundamental right to marry

2. Traditional Restrictions on Marriage

a. Incest

Singh v Singh 1990 Ct. pg 83
Half blood uncle niece can’t marry (Wife’s mother was Husbands half sister) (r-ship through Consanguinity=related through blood)

· Half-blood uncle/niece is prohibited by the incest statute;
· Precedent in this state is Skinner that says brother/sister includes half bloods.
· Half uncle niece marriage is void as incestuous.
· State v. Skinner: half blood is included in the incestuous marriages and cannot be married.
· State v. Moore: In-laws (reverse that it was not incestuous marriage) Here the people were related by Affinity. There was no blood relations involved. Ct- said that you can terminate in-law relationships and still have a valid marriage.
· Generally accepted rule: a marriage is valid where the ceremony was performed was valid—Exception: invalid incestuous marriages b/w person s so closely related that their marriage was contrary to the strong public policy of the domicile.

Consanguinity=blood relations ; (void) (blood relations cannot be terminated)
Affinity= related through marriage (voidable). R-ship through affinity can be terminated
Are they too closely related to be married.

Void marriage: marriage simply doesn’t exist.. – (no annulment is necessary to end marriage)
Void Ab initio: the parties never had legal marriage status even if they obtained a license and observed martial formalities.

Voidable marriage: may be annulled – party not fully honest, (fraud); marriage under duress.
– May be annulled or ratifiied.
– Ratification: party may ratify marriage – ex: no longer under duress or aware of fraud and still continuing the marriage.

Back v Back 1910 Iowa pg 89
Relationship of affinity ends when marriage ends
· Marriage became valid when the mother died and the relationship of affinity b/w her daughter and ex was valid at that point
· Man married wife’s daughter after they divorced. – marriage upheld.

Note: Adoptive r-ships: may be able to marry in some sta

ge license; used RB; marriage is not about procreation.
– In Re marriages – strict scrutiny b/c suspect class sexual orientation.

See hand out – Jan 29 – where same sex marriage are allowed or recognized.
• States issues marriage license to same sex couple – (Connecticut, Iowa, MA, New Hampshire & vermont
• States recognize marriage from other jurisdictions
o NY and Dist of Columbia.
• Equivalent of state Spousal-level Rights Equivalent
o CA, Dist of Col; NV, NJ, Oregon, WA.
• 29 states, limiting marriage to one man and one woman.
o MI 2004.

Nat’l Pride at Work Inc v. Gov of Mich. Mich Sup Ct 2008 [ Supp 30] Taking even benefits away from same sex couples after amending constitution to forbid gay marriage

• Mi case addressed public ER’s – here state cannot provide health care benefits to same sex domestic partners.
• The constitution was amended – it prohibits the recognition of unions similar to marriage “for any purpose.”
• similar union= looks alot like marriage; domestic partship is a union and similar to a marriage
• Restriction similar to marriage to same sex union – as is for age, polygamy; incest; etc

• the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose, prohibits public employers from providing health-insurance benefits to their employees’ qualified same-sex domestic partners.

• providing health care benefits is not recognizing the same-sex union as a marriage.
• courts agreeing that health care benefits is not a benefit of marriage but then stretching it too far and saying that it can relate to marriage.

Prof: Nat’l pride relates to in re marriage – both state that marriage is fundamentally similar union & same sex marriage is essentially marriage.

Wilson v Ake US Dist. Ct. Fla 2005 pg 121
DOMA and Full faith and credit issued – Rational basis

o Lesbian couple married in Mass, trying to validate marriage in FL, not allowed b/c FL doesn’t recognize same sex marriages + Fed const doesn’t either.— Lesbians lost.
o That DOMA and Fla Stat 741.212 were not unconstitutional.
o Marriage is a FR but marrying same sex is not. (the court refuse to extend Lawrence) gay is not a suspect class; no strict scrutiny.
o Courts would be deciding a FR, which is the role of the legislature
o RBR here: Encouraging child raising in homes w/ married (mother and fathers) is legit state interest.
o Federal law: DOMA ‘marriage is b/w a man and a woman’ and state full faith and credit clause would not apply here, so states you don’t have to recognize this same sex marriages.