Family Autonomy - Constitutional

14th amendment, Section 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

9th Amendment: The enumeration in the Constitution of certain rights, shall not be construed to disparage others retained by the people.

How to decide what rights are fundamental?

1. Originalist – look to the Constitution: only those rights enumerated in the Constitution or intended by its Framers to be fundamental

2. History & Tradition – rights historically and traditionally protected and deemed fundamental

3. Thos rights connected with securing a democratic process – voting, speech, etc

4. Look to the rights deemed fundamental by the laws of nature

5. Moral consensus

The right to marry

1. Loving v. Virginia- black woman marries white man

   1. Held: the right to marry is a fundamental right

      1. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

      2. The decision to marry a person of another race “resides with the individual and cannot be infringed by the State.”

2. Zablocki v. Redhail (1977) – law burdened the right of individuals to marry who are obligated to pay child support to a minor not in their custody. Redhail owed more than $3700 in child support.

   1. Held: strict scuritiny applies. The right to marry is fundamental because 1) it is one of the most important relations in life; 2) the foundation of the family and of society, without which there would be neither civilization or progress; 3) it is necessary for the very existence and survival of the race; 4) it is part of the right of privacy

   2. But SS not applicable to all burden on the right to marry. “Reasonable regulations that do not significantly interfere with decisions to enter into a marital relationship may legitimately be imposed

   3. Marshall: marriage is a part of the right to privacy found in the 14th amendment as identified in Griswold v. Connecticut. While the state has an interest in ensuring that child support obligations were fulfilled, this statute only regulated those who wished to be married and did not justify the restriction on the right to marriage as found in Loving v. Virginia.

Same Sex Marriage

1. 6 states have legalized same sex marriage (MA, CT, IA, VT, NH)

2. 12 states have created legal unions for same sex couples that offer varying subsets of the rights and responsibilities of marriage

3. 29 states have constitutional provisions restricting marriage to one man and one woman

4. 12 states have statutes restricting marriage to one man and one woman

5. 19 states ban any legal recognition of same sex civil unions

6. Goodridge v. Dept of Public Health (Mass): first case ever to declare a constitional right to same sex marriage.

7. Article Iv, Section I Full Faith and Credit Clause

   1. “Full faith and credit shall be given to each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effects thereof.”

Federal defense of marriage act

1. Federal definition of marriage to relationships between one man and one woman

2. States do not have to give full faith and credit to the same sex marriages of other states

3. Allows for the denial of federal benefits to same sex marriage couples

Perry v. Schwarzenegger/Brown Timeline :

1. 2000: the people of CA adopted prop 22- “Only marriage between a man and a woman is valid or recognized in CA.”

2. 2004: marriage statue challenged for violating the CA Constitution’s EPC. In May 2008, CA Sup. Ct. held the statute unconstitutional: “the fundamental right to marry … could not be denied to same-sex couples, who are guaranteed “the same substantive constitutional rights as opposite sex couples to choose one’s life partner and … enjoy all of the constitutionally based incidents of marriage.”

3. Nov 2008: the people of CA adopted prop 8, which added a new provision to the CA Constitution, stating that “only marriage between a man and a woman is valid or recognized in CA.”

4. May 2009: CA Sup. Ct. upheld prop 8 as a valid initiative but sustained the 18,000 plus marriage of same sex couples performed between May and November.

Perry v. Schwarzenegger (August 2010): federal district court held that prop 8 violated the...