Law Commons^™

Moving Beyond The Immutability Debate In The Fight For Equality After Proposition 8., M.K.B. Darmer, Tiffany Chang

The Scholar: St. Mary's Law Review on Race and Social Justice

On May 15, 2008, the California Supreme Court issued its historic decision regarding marriage rights for same-sex couples. In the course of its opinion, the court found that classifications based upon sexual orientation are subject to the protections of “strict scrutiny” for purposes of the state’s equal protection clause. The court also found that marriage is a fundamental right that extends to same-sex couples. On November 4, 2008, 52% of California voters voted for Proposition 8, which purported to “amend” the state constitution by adding fourteen words in a new clause following the equal protection clause: “only marriage between a …

The Marriage Contract In Fine Art, Benjamin A. Templin

Northern Illinois University Law Review

From the fifteenth- to eighteenth-centuries, artists across Europe and England painted a scene depicting the negotiation of a marriage contract. In nearly every painting, a notary sits or stands at a table, quill in hand, memorializing the details of the dowry transfer. Some artists celebrated the accord, while others condemned arranged marriages made for purposes of status and money. Interestingly, at the same time the artists painted, massive changes occurred in the law and political philosophy aimed at changing some of the inherent problems in marriage law, such as the rights of women, the influence of parents, and divorce. To …

Married Against Their Will? Toward A Pluralist Regulation Of Spousal Relationships, Shahar Lifshitz

Washington and Lee Law Review

This Article addresses the regulation of the relationships between unmarried cohabitants. It challenges the conventional divide between conservative and liberal approaches. On one hand, moral condemnation of nonmarital conjugal relationships and public policy in favor of marriage lead conservatives to reject the application of marriage Law to cohabitating partners. On the other hand, based on principles such as freedom, tolerance, and equality, liberals tend to equate the mutual legal commitments of cohabitants with those ofmarriedpartners. I break with conventional analysis by offering a novel liberal model that separates between the mutual obligations of cohabitants and married partners. The proposed model …

Laboratories Of Constitutionality: How State High Courts Paved The Way For Federal Courts To Invalidate Prohibitions On Same-Sex Marriage, Tyler T. Rosenbaum

Tyler T Rosenbaum

This article looks at the opinions of the state high courts that have adjudicated the constitutionality under their state constitutions of prohibitions on same-sex marriage and, given the extent to which the state high courts deferred to Supreme Court case law in interpreting their own constitutions, concludes that a federal court would be more likely than not to find that such prohibitions violate the United States Constitution.

With respect to a claimed substantive due process right to same-sex marriage, the Supreme Court’s ruling in Lawrence v. Texas undermined much of the precedent that would have required a careful, tradition-bound analysis. …

What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet

Duke Journal of Gender Law & Policy

[...] the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world.3 At the same time, in contrast to the American-style constitutional commitment to separate church and state,4 the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity.5 So the same Constitution that protects western fundamental rights also elevates Islamic law, a …

Razing The Citizen: Economic Inequality, Gender, And Marriage Tax Reform, Martha T. Mccluskey

Contributions to Books

Published as Chapter 12 in Gender Equality: Dimensions of Women's Equal Citizenship, Linda C. McClain & Joanna L. Grossman, eds.

This chapter links the failure of U.S. social citizenship ideals to a broader weakness in U.S. ideas citizenship. To better advance policies of economic equality, U.S. law and politics needs a stronger vision not just of economic equality, but of gender equality and of democracy in general. Feminist scholars have analyzed how ideas about gender help shape the common assumption that the costs of raising and sustaining capable, productive citizens are largely private family responsibilities. But ideas about gender also …

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 …

Families Redefined: Kinship Groups That Deserve Benefits, Jane E. Cross, Nan Palmer, Charlene L. Smith

Faculty Scholarship

In Families Redefined: Kinship Groups that Deserve Benefits, the authors examine 1) the nature of kinship families, 2) the benefits accorded to married couples, 3) kinship families that lack protection and benefits, 4) the impact of denying kinship families protection and benefits, 5) the use of contract law in kinship relationships, and 6) using legislation to benefit kinship relationships.

This exploration of expanding family law protections to kinship groups addresses a series of interrelated topics. The first two sections of the article explore the characteristics and creation of kinship families in different societies. The third section addresses the legal …

Report Of The Law Reform Committee On Ancillary Orders After Foreign Divorce Or Annulment, Aqbal Singh, Debbie Ong, Yock Lin Tan, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

A matrimonial order of divorce, nullity or legal separation is often followed by ancillary orders relating to division of matrimonial property, custody of children and maintenance. Under Singapore law, many of the court’s powers in respect of these types of orders depend on the court having jurisdiction to pronounce on the status of the marriage. If an order made by a foreign court is recognised to have annulled or dissolved the marriage, then it is not possible for the Singapore court to assume jurisdiction in respect of the marriage; there is no marriage to speak of anymore. The legal consequence …

Legal Regulation Of Marriage: From Status To Contract And Back Again?, Jana B. Singer

Jana B. Singer

The purpose of this paper is to give a brief historical overview of the way in which the American legal system has traditionally regulated marriage.

Alimony And Efficiency: The Gendered Costs And Benefits Of Economic Justification For Alimony, Jana B. Singer

Jana B. Singer

No abstract provided.

Say "I Do": The Judicial Duty To Heighten Constitutional Scrutiny Of Immigration Policies Affecting Same-Sex Binational Couples, Cori K. Garland

Indiana Law Journal

No abstract provided.

Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Atmospheric Harms In Constitutional Law, Frederick Mark Gedicks

Schmooze 'tickets'

No abstract provided.

Australian Marriage Law From A Biblical Perspective, Neil J. Foster

Neil J Foster

This paper discusses aspects of the Australian law of marriage from a Biblical perspective. It concludes that the definition of marriage in the law of Australia is quite consistent with the definition adopted by the Bible, and also discusses how Christians ought to view marriage under the law of Australia.

The Gay Agenda, Libby Adler

Michigan Journal of Gender & Law

This Article is designed to illuminate options that the author believes have been difficult for advocates of gay rights to imagine due to an incessant culture war and the hard work of anti-gay forces that have kept pro-gay advocates under persistent fire. The culture war, this paper argues, while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run.

Moving Beyond The 'Immutability Debate' In The Fight For Equality After, M. Katherine B. Darmer

M. Katherine B. Darmer

On May 15, 2008, the California Supreme Court issued its historic decision regarding marriage rights for same-sex couples. In the course of its opinion, the court found that classifications based upon sexual orientation are subject to the protections of "strict scrutiny" for purposes of the state's equal protection clause. The court also found that marriage is a fundamental right that extends to same-sex couples.

On November 4, 2008, 52% of California voters voted for Proposition 8, which purported to "amend" the state constitution by adding fourteen words in a new clause following the equal protection clause: "only marriage between a …

Gay Equality, Religious Liberty, And The First Amendment, Matthew J. Murray

Matthew Murray

Are gay rights laws and religious liberty fundamentally in conflict? Would legal recognition of same-sex marriage lead to a wave of litigation threatening the religious liberty of those who object to such unions on religious grounds? Opponents of same-sex marriage have vocally asserted as much. This Article argues, however, that modifications in civil marriage laws in fact pose little to no threat to the liberty of religious objectors. Rather, the real arena of potential conflict between religious liberty and gay equality arises in the context of sexual orientation nondiscrimination laws. But these tensions are not new. The courts should be …

Marriage And Divorce: Legal Foundations, Azizah Y. Al-Hibri

Law Faculty Publications

A six-volume work, this set constitutes a major revision and massive expansion of the 1995 Oxford Encyclopedia of the Modern Islamic World. In addition to covering Islamic societies in the modern world from the eighteenth century to the present, as the earlier four-volume set did, it will add a depth of historical background going back to the pre- Islamic era. The new reference also covers the full geographical extent of Islam by focusing not only on the countries in which Islam is dominant, but also on regions in which Muslims live as minorities, such as Europe and the Americas.

Marriage And Its Alternatives, Jeanine Elbaz

Tribeca Square Press

No abstract provided.

Forty Years Of Welfare Policy Experimentation: No Acres, No Mule, No Politics, No Rights, Julie A. Nice

Northwestern Journal of Law & Social Policy

This introductory essay questions putting nearly all effort into social policywhich has failed to reduce povertyand calls instead for reinvigorating other tactics and re-imagining the unfinished dream of economic justice. Indeed, what Martin Luther King, Jr. envisioned was an actual war on poverty, not merely the abbreviated, under-funded, and ultimately unsuccessful effort of the 1960s, nor the imposter war on welfare that has dominated our social policy effort since. But our social policy has not only failed to reduce poverty, it failed to focus long-needed attention on poverty and inequality. Nor has social policy facilitated the political mobilization of poor …

Matrimonial Consent In Canon Law Juridical Aspects, Roberto Rosas

Faculty Articles

A valid marriage emerges thanks to the founding power of one sole efficient cause—consent. Marriage is a complex human reality; it encompasses physio-biological, psychological, personal, social, religious, moral, and judicial aspects. The essence and characteristics of marriage are determined by natural law. From here, Canon Law made an extraordinary effort, unknown by the other judicial codes, to investigate the natural demands of marriage, just as they are demanded by the dignity of the human being.

Consent is the only efficient cause of the matrimonial bond. It is generally accepted that the mutual consent of both of the contracting parties is …

Eliminating The Secondary Earner Bias: Lessons From Malaysia, The United Kingdom, And Ireland, Tonya Major Gauff

Northwestern Journal of Law & Social Policy

This Student Comment explores the long-standing gender bias inherent in the United States Internal Revenue Code ("IRC"). Specifically, this Comment discusses the bias of the taxing code against secondary earners in dual-income families. Under the IRC, primary earners in a dual-income household are taxed at a much lower rate than secondary earners in the household. As women have historically suffered from lower wages and income than their husbands, the effect of the IRC is to tax married women at much higher rates than married men. Indeed, the average working married woman loses over two-thirds of her pay to income taxes. …

Same-Sex Marriage In The Heartland: The Case For Legislative Minimalism In Crafting Religious Exemptions, Ian C. Bartrum

Michigan Law Review First Impressions

In Varnum v. Brien, decided April 3rd of this year, the Iowa Supreme Court unanimously struck down the state's statutory ban on same-sex marriage. In a remarkably clear and thoughtful opinion, Justice Mark Cady explored in depth the immutability of sexual identity and the appropriate standard of judicial review for legislative classifications based on sexual orientation-adopting (for now) an intermediate level of scrutiny. The decision marked the first significant legal victory for same-sex marriage outside of New England (with the exception of a short-term success in Hawaii), and served notice that the gay rights movement—once thought compelling only among northeastern …

New York Recognition Of A Legal Status For Same-Sex Couples: A Rapidly Developing Story, Arthur S. Leonard

NYLS Law Review

No abstract provided.

The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock

Journal Articles

Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either …

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams

Faculty Scholarship

No abstract provided.

A House Divided: The Invisibility Of The Multiracial Family, Angela Onwuachi-Willig, Jacob Willig-Onwuachi

Faculty Scholarship

This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial. This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, …

The Discourse Of "Contract" And The Law Of Marriage, Thomas W. Joo

Thomas W Joo

Marriage is often compared to a "contract." While this analogy bases the law of marriage on a presumed settled concept called "contract," it rests in fact on a contested view of "contract": that legitimate obligation must derive from consent. This focus on consent ignores another, contradictory, strand of contract law that imposes obligations without consent. The pervasiveness of the consent-centered "contract" analogy affects our understanding of "contract" as much as it affects our understanding of marriage.