Law Commons^™

The Integrity Of Marriage, Kaiponanea T. Matsumura

William & Mary Law Review

While the Supreme Court’s decision in Obergefell v. Hodges resolved a dispute about access to legal marriage, it also exposed a rift between the Justices about what rights, obligations, and social meanings marriage should entail. The majority opinion described marriage as a “unified whole” comprised of “essential attributes,” both legal and extralegal. The dissents, in contrast, were more skeptical about marriage’s inherent legal content. Justice Scalia, for instance, characterized marriage as a mere bundle of “civil consequences” attached to “whatever sexual attachments and living arrangements [the law] wishes.” This side debate has taken center stage in several recent disputes. In …

Reynolds V. United States, Rewritten, Laura T. Kessler

Utah Law Faculty Scholarship

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a …

Rwu First Amendment Blog: Jared Goldstein's Blog: Masterpiece Cakeshop Ruling: No Constitutional Right To Discriminate (For Now) 06-05-2018, Jared A. Goldstein

Law School Blogs

No abstract provided.

Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins

Maine Law Review

In 1997, Maine's Legislature passed “An Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages” (Act). The summary attached to the bill states that the bill “prohibits persons of the same sex from contracting marriage.” The bill was the verbatim text of an initiative petition. Civil marriage in Maine and other states is regulated by state statute, and marriage regulation is generally considered to be within the state's police power. However, the state's power to regulate marriage is subject to constitutional limitations. I maintain that “heightened scrutiny” should be applied to the Act because the Act creates a gender-based classification, …

Going To The Clerk’S Office And We’Re Not Going To Get Married, Alicia F. Blanchard

University of Massachusetts Law Review

Same-sex marriage is a controversial topic subject to great debate. The Supreme Court in 2015 federally recognized the legality of same-sex marriages in Obergefell v. Hodges. Despite this ruling, some people looked for any reason to denounce the holding. Perhaps none were more vocal than those who rejected same-sex marriage on the basis of their religious tenets. Miller v. Davis provided people who were morally opposed to same-sex marriage a platform to support their concerns grounded in a First Amendment right to freedom of religion. The question is how far does one’s freedom of religion extend? Does freedom of religion …

Chained Against Her Will: What A Get Means For Women Under Jewish Law, Michelle Kariyeva

Touro Law Review

No abstract provided.

Newsroom: Donald Trump Vs. Roger Williams 05-09-2017, David Logan

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: David A. Logan's Blog: Donald Trump Vs. Roger Williams 05-08-2017, David A. Logan

Law School Blogs

No abstract provided.

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …

Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan

Michigan Journal of Gender & Law

According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.

Privacy In Connecticut, Arthur E. Sutherland

Michigan Law Review

Occasionally a judgment of our Supreme Court, delivered in a superficially petty case, suddenly before our startled eyes displays fundamentals of our constitutional theory. Thus, in Griswold v. Connecticut, holding unconstitutional an 1879 Connecticut statute forbidding all persons to use contraceptive devices, the Court found it necessary to discover a "right of privacy" latent in the Bill of Rights and incorporated into the due process clause of the fourteenth amendment. The outcome of the case is satisfying; all nine Justices joined in saying, in one way or another, that Connecticut's statute was nonsense. I am happy to see this …

The Griswold Penumbra: Constitutional Charter For An Expanded Law Of Privacy?, Robert G. Dixon Jr.

Michigan Law Review

The comments that follow are divided into a brief review, for purposes of perspective, of the elusive nature of "privacy" as developed in American law to date, and an attempted rigorous analysis of the privacy aspects of Griswold. A final section suggests that effectuation of the new constitutional right of marital privacy necessarily or derivatively implies a corollary right of access to birth control information and devices-a right which should have been more clearly articulated by the Court.

Penumbras, Peripheries, Emanations, Things Fundamental And Things Forgotten: The Griswold Case, Paul G. Kauper

Michigan Law Review

The varying theories followed in the several opinions in the Griswold case can be fully understood and appreciated only in the context of the tortuous but fascinating history of the judicial interpretation of the fourteenth amendment.

The Right Of Privacy: Emanations And Intimations, Robert B. Mckay

Michigan Law Review

When Louis Brandeis and Samuel Warren wrote in 1890 of "The Right to Privacy," they sought a means of protecting against unwelcome newspaper attention to social activities in the Warren household. Addressing their argument to the private law of torts, they presumably did not anticipate constitutional protection for other rights under the claim of privacy. Nevertheless, seventy· five years later that concept, now called the "right of privacy," was used by the Supreme Court of the United States in Griswold v. Connecticut to describe a constitutional right. Some members of the Court said the new right was within the "penumbra" …

Nine Justices In Search Of A Doctrine, Thomas I. Emerson

Michigan Law Review

To the ordinary layman, Griswold v. Connecticut seemed easy. But to the lawyer it was somewhat more difficult. The lawyer's problem with the case was that the issues did not readily fit into any existing legal pigeonhole. Actually, there were five possibilities. The case could have been dealt with under the equal protection clause, the first amendment, substantive due process, the right of privacy, or, in extremis, the ninth amendment. In order to strike down the statute under any of these doctrines, however, the Court would be forced to enter uncharted waters. Whatever course the Court took, its action …

Wills - Religious Conditions In Restraint Of Marriage - Validity At Common Law And Effect Of Shelley V. Kraemer, Jack G. Armstrong S.Ed.

Michigan Law Review

Testator devised and bequeathed his property to his children, but with a proviso that the gift to any child who should marry a person not born in the Hebrew faith should lapse. Subsequent to the testator's death, the defendant married a woman who had been born a Roman Catholic. The other beneficiaries brought a proceeding to declare that the defendant had lost his rights under the will by reason of his marriage. The probate court granted a decree substantially as sought by the plaintiffs. On appeal, held, affirmed. This partial restraint on marriage is not so unreasonable as to …