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WEEK 11

WEEK 1

Monday, September 27
 PAGES: 1-21
CASES: William H. Orr v. Lilian M. Orr; Michael M. v. Superior Court

    INTRODUCTORY NOTES:

    • Each assignment will encompass about 23 pages; the whole book will be covered.
    • Grade is based entirely on the 3-hour final examination.

    LECTURE NOTES: Discussion centered on the Equal Protection Clause and the three levels of review encompassed (see Terms for definitions).

    The Equal Protection Clause addresses classifications made in stautes. Every staute makes some classifications (criminals/law-abiding citizens, minors/adults, husbands/wives, etc.). The first step in analyzing an Equal Protection Clause case, Hardisty says, is determining the classification identified by the statute. This is not always so easy, Hardisty says. For example, is the classification in Orr v. Orr men and women? By definition, only men or women who are or have been married are affected by the Alabama alimony staute. The Court, in the opinion, uses the language of "husbands" and "wives" to identify the classes. Even this is not entirely accurate, however, as former husbands are most often affected by the staute (though husbands separated from their wives are also affected). Additionally, Hardisty pointed out, single men and women are affected by the statute because it might influence them in deciding about whether to wed.

    Principle behind the Equal Protection Clause:


    • The substantive law must apply equally to all citizens.
    • Like cases must be decided similarly.

    HISTORY: The common law rule was that the husband had a duty to support the wife during marriage and to support any children that were born to the woman during the marriage.

Tuesday, September 28
PAGES: 21-55
CASES: Carey v. Population Services International; Planned Parenthood v. Casey

    SOURCE OF LAW: The source of law in each of the three cases in the first and second assignment were the Equal Protection Clause, that is, the justices laid each challenged staute next to the Equal Protection Clause to determine whether it was constitutional

    DUE PROCESS CLAUSE: Monday's cases dealt with the Equal Protection Clause of the Fourteenth Amendment; today's deal with the Due Process Clause of the Fourteenth Amendment.

    Principle behind the Due Process Clause: The state must treat presons fairly.

    OVERVIEW OF THE DUE PROCESS CLAUSE: The Due Process Clause includes both procedural and substantive aspects. On the procedural side, it effects civil and criminal law in different ways. In civil law, procedural due process means the right to not be dragged into a foreign jurisdiction to be sued, the opportunity to be heard, the right to be put on notice when sued (inter alia). In criminal law, procedural due process means the state has the burden of proving a criminal defendant guilty beyond a reasonable doubt, the right to a speedy trial, etc. The Supreme Court ruled, in In re Winship, that the rights of the Bill of Rights are due process requirements, as well as others (as detailed later).

    The question of whether due process includes substantive law as well as procedural is the subject of a 500-year debate. Where the idea of equal protection is a more American notion, the idea due process is much older. Substantive due process means that the government may not infringe upon fundamental liberties absent a compelling interest. A woman's right to choose to have an abortion is considered a fundamental right, as an extension of the right to privacy (considered implicit in the Fourteenth Amendment's guarantee of "liberty").

    HISTORY: The idea of finding fundamental rights (like the right to privacy) not explicitly ennumerated in the Bill of Rights fell out of vogue with the Roosevelt appointments to the Supreme Court. Before these appointees joined the Court, the Court had blocked many key New Deal programs aimed at regulating the economy on the theory that they violated substantive due process. The minimum wage, for example, was considered a violation of the right to contract. Substantive due process was dusted off for Roe v. Wade, in which the Court found that outlawing abortion violated a woman's right to privacy and, therefore, substantive due process.

Wednesday, September 29
PAGES: 55-76
CASE: Bowers v. Hardwick

    Extensive discussion of Bowers v. Hardwick, in which the Court upheld Georgia's law prohibiting sodomy ("A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another."). Writing for the Court, Justice White said engaging in sodomy is not a fundamental right guaranteed by the Constitution, so that a law against it does not violate the due process rights of one who engages in such an act. The Court should show "great resistance" to expanding the substantive reach of the Due Process Clauses of the Fifth and Fourteenth Amendment; otherwise, the judiciary "necessarily takes to itself further authority to govern the country without express constitutional authority."

    The right to engage in sodomy, even between consenting adults in the privacy of a residence, does not rise to the level of those rights qualifying for heightened judicial protection, the Court says, because it is not "implicit in the concept of ordered liberty" nor "deeply rooted in this nation's history and tradition."

    DISTINGUISHING ROE, CAREY, ETC.: The Court's decisions involving the right to privacy are inapposite, as they each included some connection between family, marriage or procreation. The Court, in this case, rejects the reasoning of Roe v. Wade, in which the Court expanded the right to privacy to made a woman's right to choose abortion a fundamental right.

    RATIONAL BASIS: Hardwick argued that there is no rational basis for the law because it is based on nothing other than "the presumed belief of a majority of the electorate in Georgia that homosexuality is immoral and unacceptable." The Court says the electorate's notions of morality are a rational basis for the law.

    CLASS DISCUSSION: After declarations from students that White was a bigot and that his reasoning fails close scrutiny, Hardisty guessed that, from what he knows of White, the justice probably thought the sodomy statute was a bad law and that he was vote against it if he were a legislator. White's position on expanding substantive due process lead him to a similar result in Roe v. Wade, Hardisty pointed out, and would probably lead him to uphold laws forbidding fornication (sex between unmarried adults). White would say that there is no fundamental right to engage in sexual activity. Defending White's view, Hardisty said that when the judiciary makes fundamental rights from language not implicit in the Constitution, it substitutes the view of the people with the view of the judiciary. This is an elitist notion. It was pointed out that limiting the notion of fundamental rights to those enumerated in the Constitution was in itself elitist because the Constitution was drawn up by a group of white, male, land-owning elites.

Thursday, September 30
PAGES: 76-92
CASES: Littlejohn v. Rose; Cruzan v. Director, Missouri Dept. of Health

    HARDISTY'S HOLDING (Littlejohn): A state may not refuse to rehire a teacher because she is undergoing a divorce.

    SOURCE OF LAW: Littlejohn sued under the Civil Rights Act, 42 U.S.C. Sec. 1983, which provided her with remedies she would not necessarily have been able to obtain had she sued on the theory that the superintendent had violated her liberty interests under the Due Process Clause of the Fourteenth Amendment. Therefore, the Civil Rights Act is a source of law in family law.

    JUDICIAL CONFUSION: Hardisty pointed out that the Sixth Circuit confused privacy and liberty in its decision when it said, at the bottom of page 77, that "It is clear ... that a person's involvement in activity shielded by the constitutionally protected rights of privacy and liberty constitutes an impermissible reason for denying employment...." (emphasis supplied). Under Roe v. Wade, privacy is considered a fundamental liberty right, so that the rights to privacy and liberty are not parallel. Privacy is one kind of liberty. The court here seems to meld the two together.

    NON-JUDICIAL FACTORS: It was postulated that a number of factors influenced the court which were not articulated in the opinion, including:

    1. The rate of divorce was on the rise when this decision came down (1985) so that an increasing number of people would be affected by a ruling which permitted hiring discrimination based on marital status.
    2. Divorce had become more acceptable by 1985.
    3. The women's movement had fought the divorced-woman stereotype and the stigma attached to that.

    CRUZAN: State can permissibly require that a patient in a persistent vegetative state be given life-sustaining hydration and nutrition absent clear and convincing evidence of that patient's desire for the treatment to be withheld without violating the patient's privacy rights under the Due Process Clause of the Fourteenth Amendment. In other words, the clear-and-convincing evidence standard is not inconsistent with the Due Process Clause of the Fourteenth Amendment to the Constitution.

    NON-JUDICIAL FACTORS:

    1. The Kevorkian Factor: The idea of the right to die with dignity was paramount in the public eye what with "Dr. Death" doing his thing in Michigan.
    2. Decreasing power of religion on people's decisionmaking.
    3. Increasing value on person autonomy.

Friday, October 1
PAGES: 93-114
CASES: Lydia McGuire v. Charles W. McGuire; Kathie E. Raucci v. Town of Rotterdam

    HOLDING OF MCGUIRE: A wife living with her husband and being supplied a thrifty standard of living has no cause of action for support.

    STUDENT HOLDING: A wife may not maintain an action in equity to recover support and maintenance from her husband when the husband and wife are still living together and the home is still being maintained in the matter to which she is accustomed.

    HARDISTY'S JUSTIFICATION: Hardisty eliminated any reference to law or equity because, he asserted, the holding would be broad enough to cover either.

    HISTORY: Although McGuire v. McGuire is a Nebrasaka case, this was the rule in all jurisdictions until the Supreme Court decided Reed v. Reed in 1971. Hardisty emphasized the importance of this case and how it relates to this date: When you think of 1971, you should think of this case, and when you think of Reed v. Reed, you should think of 1971, he said. Reed v. Reed was significant, Hardisty said, because that was the firs time the Court had stuck down a sex classification based on the Equal Protection Clause. This is the case, Hardisty said, in which the Supreme Court got the women's movement in line with its power of judicial review.

    DISCUSSION: McGuire v. McGuire was criticized as a pro-man rule, relegating the standard of living of the entire household on the "thriftiness" of the husband.


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