Class Notes- 8/30

4 Principles of Marriage from Swindol

1) Severance
2) Permanence
3) Unity
4) Intimacy
Deut 24!"
#ules for marriage
1) unrelated
2) appropriate age
3) one at a time
4) opposite se$
%ae&r v 'ewin
(awaii was c&osen for t&is fig&t )ecause of t&eir *onstitution
+,ual Protection is an issue wit& -se$.
/similar treatment of similarly situated persons
Due Process
/su)stantive due process/ li)erty interests 0fundamental rig&ts cannot )e ta1en
away)
/e$2 privacy3 marriage3 parenting
4ou can &ave e,ual protection su)5ect to minimum re,uirements3 &owever (awaii said
t&at -se$. encompassed se$ual orientation
(awai now &as partners&ip laws t&at govern same se$ couples )ut marriage is still
defined as one man wit& one woman
Defense of Marriage 6ct
/states don7t &ave to recogni8e same se$ marriages
/wit& t&is issue3 t&e 9ull 9ait& and *redit *lause3 a marriage validly entered into
in one state is valid in all states3 doesn7t apply/ t&is re,uirement led to D:M6
/D:M6 left t&e issue up to t&e states
*&urc& governed marriage until Martin 'ut&er came along
;&at twisted <od7s design for marriage=
1) fall
2) c&urc& canon law
*&urc& c&anged marriage law from t&e c&urc& to t&e state
State interest in regulating marriage
/prevent unsta)le marriages
wwwimapporg
Class Notes- 9/1
Pg 1431/1432/ for 9riday in >olume 2
State Statute Pro5ect
/marriage re,uirements
/void2voida)le marriages
/non marriage=
/D:M6
/*ommon law marriage
%i)lically marriage is a covenant
*ivilly marriage is a contract2status
Class Notes- 9/3
9ederal Marriage 6mendment
/if c&oice of law rules stay t&e same3 t&en t&e 9M6 isn7t needed
/&owever3 t&ere are reasons w&y t&is could )e good
/e$2 uniformity in t&e states3 5udicial activism
/<oodridge allowed same se$ marriages
/limitation on Mass <oodridge opinion/ can7t go to Mass to avoid your own state7s laws
/t&erefore3 someone from ?* can7t go to Mass to get married
9ull 9ait& and *redit *lause
/&istory is unclear and power to congress is unclear as well
/2 t&eories of congress power
/t&eory 1
a) 1
st
sentence/ procedural
)) 2
nd
sentence/ su)stantive
/t&eory 2
a) 1
st
sentence/ su)stantive
)) 2
nd
sentence/ procedural
/more deference is given to 5udgments vs statutes
/you go to t&e law of t&e state w&ere t&e marriage occurred to see if it is recogni8ed in all
t&e states3 &owever3 t&ere can )e a pu)lic policy e$ception to recogni8ing marriages
Putative Spouse
/someone w&o &as )een victimi8ed )y t&e ot&er person7s deceit
/e$2 I didn7t 1now &e was married
/t&is is e,uita)le relief
*ommon 'aw Marriage Doctrine
/t&ere was no ceremony2no license
/elements
a) &olding out as married
)) )ot& people &ave an agreement to )e married
c) it is e$clusive of all ot&ers
/t&ese must )e recogni8ed )ecause of t&e full fait& and credit clause if all t&e
re,uirements are met 0and t&e marriage must &ave occurred in a state t&at recogni8es
common law marriage)
/t&ere is no time limit re,uirement
/pro)lems wit& cl marriage
/procedurally
/evidentiary
M4'+<S/ re,uirements for statute of frauds
'/ lands
+/ employment
</ goods
S/surety
M/ marriage
4/ year3 e$ceeds a year