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Full-Text Articles in Law
Congress, Federal Courts, And Domestic Relations Exceptionalism, Mark Strasser
Congress, Federal Courts, And Domestic Relations Exceptionalism, Mark Strasser
Mark Strasser
Family law is often cited as a paradigmatic example of state law, and the Supreme Court has often trumpeted the “domestic relations exception” as a justification for preventing federal involvement in family matters. Yet, it is of course true that a variety of federal programs affect the family, so it is important to figure out which areas are reserved for the states and which are not. Further, the federal courts have heard a variety of cases involving family matters, so it is not as if the courts never have jurisdiction to hear such cases. The tests for determining when the …
The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser
The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser
Mark Strasser
Personhood statutes and amendments have been proposed in several states. As a general matter, they establish as a matter of state law that legal personhood begins at conception. Such laws may have implications for state policies concerning abortion and contraception, and will have implications for other areas of law including state policies related to assisted reproductive technologies. Yet, some of the ways in which these different areas of law might be affected are not well understood and thus are explored here.
Doma’S Bankruptcy, Mark Strasser
Doma’S Bankruptcy, Mark Strasser
Mark Strasser
Over the past few years, several federal courts have suggested or held that section three of the Defense of Marriage Act (DOMA) violates constitutional guarantees. The courts have differed, however, both with respect to the appropriate standard of review and with respect to the particular constitutional guarantees that the section allegedly violates. Ironically, the resolution of these debates may ultimately have less import for the constitutionality of the section at issue than for the constitutionality of DOMA’s full faith and credit section and for the constitutionality of state same-sex marriage bans. This article addresses the constitutionality of section three of …
Equal Protection, Same-Sex Marriage, And Classifying On The Basis Of Sex, Mark Strasser
Equal Protection, Same-Sex Marriage, And Classifying On The Basis Of Sex, Mark Strasser
Mark Strasser
Over the past several years, several plaintiffs have challenged same-sex marriage bans under the respective state constitution’s equal protection guarantees. Some state supreme courts have struck down those laws on that basis, whereas others have not. This lack of uniformity is unsurprising, both because the language in one state constitution might differ from that of another and because, even where the language is the same, the jurisprudence in the respective states fleshing out the depth and breadth of the guarantees might differ. What seems more surprising is that courts cannot even agree about whether same-sex marriage bans employ a sex-based …
Same-Sex Marriage And The Right To Privacy, Mark Strasser
Same-Sex Marriage And The Right To Privacy, Mark Strasser
Mark Strasser
Over the past decade, several state appellate courts have analyzed whether their respective state constitutions protect the right to marry a same-sex partner. Those courts addressing the issue have differed both in their analyses and in their ultimate conclusions, although there have been striking similarities among those courts upholding same-sex marriage bans and among those striking them down, differences in wording among the respective state constitutional provisions notwithstanding. This article focuses on the due process analyses offered by the different courts, concluding that all of these decisions help demonstrate why the right to marry a same-sex partner should be found …
On Same-Sex Marriage And Matters Of Conscience, Mark Strasser
On Same-Sex Marriage And Matters Of Conscience, Mark Strasser
Mark Strasser
In our increasingly diverse society, it is ever-more important to teach tolerance of and respect for those having differing sexual orientations and religious beliefs. It thus might seem an ideal solution to include conscience clauses in legislation affording same-sex couples the right to marry, whereby individuals with religious qualms about being in any way associated with such marriages may be legally excused from doing so. Yet, by creating one exception specifically for same-sex marriages rather than a more generalized exception for those with religious qualms about facilitating or being associated with marriages contrary to belief, the state may be undermining …
Tribal Marriages, Same-Sex Unions, And An Interstate Recognition Conundrum, Mark Strasser
Tribal Marriages, Same-Sex Unions, And An Interstate Recognition Conundrum, Mark Strasser
Mark Strasser
When justifying the recognition of Native American polygamous unions, courts tended to appeal the rationale that unions valid where celebrated would be valid everywhere. Yet, courts would not recognize polygamous unions that were celebrated on non-tribal lands, even if those marriages had been valid where celebrated. The focus of this essay is on why Native American polygamous unions tended to be recognized, and the implications that these recognition practices might have for the validity of same-sex marriages across state lines.
Interstate Marriage Recognition And The Right To Travel, Mark Strasser
Interstate Marriage Recognition And The Right To Travel, Mark Strasser
Mark Strasser
Historically, states were forced decide whether to recognize a marriage, valid where celebrated, that could not have been celebrated locally. As a general rule, non-incestuous, non-polygamous marriages that were valid in the domicile at the time of celebration were treated as valid everywhere, although courts split with respect to how to apply the rule to interracial marriages. Yet, these marriage recognition practices occurred in a context where it was believed that the United States Constitution imposed no limitations on the ability of states to refuse to recognize a marriage validly celebrated elsewhere. This article examines interstate marriage recognition practices, and …
You Take The Embryos But I Get The House (And The Business): Recent Trends In Awards Involving Embryos Upon Divorce, Mark Strasser
You Take The Embryos But I Get The House (And The Business): Recent Trends In Awards Involving Embryos Upon Divorce, Mark Strasser
Mark Strasser
Various state courts have been asked to decide who should have control of remaining frozen embryos upon divorce. Different models have been proposed, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring both parties to agree before implantation can take place. This article discusses some of these models, concluding both that the enforcement of the initial agreement model is preferable to the others proposed and that one of the most popular current models--the contemporaneous consent model—is a public policy disaster that should be repudiated at the earliest opportunity.
Deliberate Indifference, Professional Judgment, And The Constitution: On Liberty Interests In The Child Placement Context, Mark Strasser
Deliberate Indifference, Professional Judgment, And The Constitution: On Liberty Interests In The Child Placement Context, Mark Strasser
Mark Strasser
Courts and commentators often argue that because adoption is created by state law, there can neither be a constitutional right to adopt nor to be adopted. They sometimes suggest that the major Supreme Court case in this area--Smith v. Organization of Foster Families For Equality and Reform (OFFER)—expressly rejects that there can be rights in the adoption context. Yet, the relevant constitutional jurisprudence is much more nuanced than these courts and commentators suggest, because the issue has not been correctly framed. The focus of discussion should be on whether there is a constitutionally protected liberty interest in the state’s not …
The Often Illusory Protections Of “Biology Plus:” On The Supreme Court’S Parental Rights Jurisprudence, Mark Strasser
The Often Illusory Protections Of “Biology Plus:” On The Supreme Court’S Parental Rights Jurisprudence, Mark Strasser
Mark Strasser
Over the past several decades, state supreme courts have been forced to analyze the degree to which the United States Constitution protects the parental rights of unwed fathers. Basically, some courts suggest that an unwed father will retain his parental rights as long as he does not culpably act or fail to act in a way which deprives him of his rights, while others suggest that an unwed father will acquire parental rights only if he affirmatively avails himself of the opportunity to establish a relationship with his child. The difference between these views can have important implications for the …