WEEK 2

Monday, October 4
PAGES: 114-133
CASE: Joshua DeShaney v. Winnebago County Dept. of Social Services

DESHANEY HOLDING: A child in parental custody beaten into mental retardation by the custodial parent is not deprived of liberty without due process of law even though the state had taken the child into temporary custody and knew the child faced a danger of abuse from the parent.

MORE INSTRUCTION ON HOLDING: Holding (rule) is: major premise + minor premise = conclusion. Or, put another way, rule + facts = application. This is the classic syllogism, illustrated by the classic example:



Humans are mortal.
Socrates is human.
Socrates is mortal.

SPECIAL RELATIONSHIP: The difference between the special relationship in DeShaney and in Raucci is that the special relationship aspect of the latter case was a component of state tort law, not the U.S. Constitution. Rhenquist, leader of the so-called "federalist revolution" on the Supreme Court, seeks to limit the scope of substantive due process and leave open to the states the power to make laws in this area. Therefore, he distinguishes previous Due Process Clause cases in which the state did have an affirmative duty by pointing out that, in those cases, the state had also deprived the plaintiff of the right to fend for him or herself, as in the case of a mental patient committed to a mental institution or a prisoner incarcerated in a state prison. In these cases, the state (and, presumably, the federal government under the Fifth Amendment in regards to prisoners and patients and the Eighth Amendment in regards to prisoners) has a duty to keep those in its custody fed and sheltered. Because nothing in the Due Process Clause imposes a "special relationship" between a state and somebody not in its custody, it cannot be held liable for not protecting that individual from the violence of a private actor (in the case, a 4-year-old boy and his father).

NON-JUDICIAL FACTORS:



• POLITICAL PRESSURES. A comment following the case noted that six states filed a joint amicus brief to reflect a shared concern for the potential financial burden from an adverse ruling. This, along with Judge Posner's comments in the Seventh Circuit opinion on this case that imposing liability would place these agencies on the razor's edge where action either way could result in litigation against them, reflects the political concern that an adverse ruling would hamstring these agencies into paralysis.
• FEDERALISM. Justice Rhenquist saw this as an opportunity to limit the federal role in state and local matters, thereby giving power back to the states as part of his "federalist revolution."
• SUBSTANTIVE DUE PROCESS. Rhenquist doesn't want to expand the scope of the so-called "substantive due process."
• JUDICIAL RESTRAINT. Of the federal judiciary.
• UNFUNDED MANDATES. Holding agencies such as this responsible for the deaths of children in the care of their parents amounts to an "unfunded mandate," in which the federal government, in the form of the judiciary rather than the legislature, tells local governments how they will allocate their limited revenues. For example, out of fear of litigation in a post-DeShaney world in which the state were held liable, the Winnebago County government might decide to hire more social workers to keep closer tabs on more children. This would take money away from other functions of government, like schools or road-building, without any meaningful public input and not in the sunshine and open air of the legislative process in which interested parties have the oppurtunity to be heard.

Tuesday, October 5
PAGES: 134-163
CASES: Susan R. Avitzur v. Boaz Avitzur; George Reynolds v. United States; Wisconsin v. Jonas Yoder; Laurie G. Walker v. Superior Court

HARDISTY SAYS: Of the four cases in today's reading, only Walker was decided correctly. Though there was not direct, specific discussion of Yoder, he said generally that the others (Avitzur and Reynolds) were politically correct renderings of difficult cases but wrong on the law.

AVITZUR: Hardisty posed the question of what was the source of law upon which the judge relied on in this decision? The opinion does not make this clear. He seems to be relying upon the First and Fourteenth Amendments to the U.S. Constitution (his talk of "excessive entanglement" seems to imply the Establishment Clause of the First Amendment, which has been incorporated to state action through the Fourteenth Amendment). But perhaps he relies on a provision of the New York state constitution, which can go further in protecting the rights of citizens than can the U.S. Constitution. And if he is invoking the Fourteenth Amendment, does he do so through the Due Process Clause (per the "substantive due process" analysis that was popular in the 1920s and 30s, then rejected after the Roosevelt appointees, then resurrected for Roe v. Wade

Hardisty criticizes this decision on the grounds that the Court could not have reached the decision it did without turning the religious interpretation of Jewish law and custom. This criticism follows thusly:



1. The Ketubah at issued includes a damages clause, in which the Beth Din is given the authority to assess fines agaisnt recalcitrant parties. Therefore, it seems to have the final say on matters relating to the document.
2. By implication, then, the state courts do not have authority over the Ketubah.
3. Getting to enforcement of the K (the majority indicates this is an enforcement issue rather than an interpretation issue) means determining what the K says.
4. Determining what the K says means engaging in impermissible interpretation of Jewish law and custom.

Therefore, Hardisty says, the court oversteps the bounds of entanglement in this case. Other jurisdictions (New Jersey) have reached different results on the same question, he said. These include:



• Aflalo v. Aflalo, 685 A.2d 523 (N.J. Super.Ch. 1996). Wife seeking dissolution of marriage was not entitled to order compelling husband to grant wife Jewish bill of divorce known as "get," as such order would violate husband's right to free exercise of religion.

See also:



• Victor v. Victor, 866 P.2d 899 (Ariz.Ct.App. 1993). Trial court had no authority to order husband to grant wife a "get," Jewish divorce document, based on equitable considerations, since religious divorce was not germane to civil dissolution.

But see:



• In re Marriage of Goldman, 196 Ill.App.3d 785 (1990). Trial court order which required husband to obtain Orthodox "get" upon dissolution of marriage did not violate Establishment Clause; order had secular purpose of enforcing marriage contract between parties and to promote amicable settlement of dispute between parties and did not advance or inhibit religion given fact that there was ample expert testimony that Judaism contained both secular and religious laws and that "get" procedure was secular in nature.
  
  
• Scholl v. Scholl, 631 A.2d 808 (Del.Fam.Ct. 1992). Requiring Jewish husband to obtain Orthodox "GET" would not violate his right to freedom of religion; ruling would not require husband to participate in religious ceremony or perform acts contrary to his religious belief and would not be excessive entanglement with religion but would be proper to compel husband to do what he had already promised his wife to do in stipulation of settlement.

REYNOLDS: Amounts to a "judicial amendment to the constitution" in order to "promote the good life," Hardisty said. A student criticized the holding as "unprincipled" and in direct violation of the First Amendment. Each of these cases included line-drawing: What are the outer limits of religious freedom under the First Amendment? Hardisty contends that Reynolds is not where the line should be drawn, but that Walker, in which parents can be held criminally liable for not seeking medical attention for their sick children who die, is.

Thursday, October 7
PAGES: 188-208
CASES: Richard Loving v. Virginia; Zablocki v. Redhail; Richard J. Baker v. Gerald Nelson; In re Estate of Harold L. Garges

WIGHTMAN: A cause of action lies for breach of promise to marry (in Massachusetts in 1818). This was apparently the accepted law of the land at the time, based on English common law. Although the language of the opinion indicates that the breach is worse for the woman, either a man or a woman could bring a cause of action for breach of promise to marray (men rarely did, apparently). Damages were measured by the expectation interest.

CONTROVERSY: A student, then two, called Prof. Hardisty to task when he corrected a student holding in Wightman that included language about the gender. Wasn't this student simply following Hardistiy's directions in constructing the holding, by making it specific enough to give the courts and lawyers something to work with when a question in this area of law arises again? That holds for cases in which the court is venturing into a new area of law or settling a new question, Hardisty said. The fact of the matter is, the general holding in this case is an example of the law of the land at the time. If he had not said anything about the specificity of the student holding (which included reference to women only), he would have led us to believe incorrectly that only women could collect for breach of promise to marry.

L.L. STANDARD V. BOLIN: The court changes the cause of action alluded to in Wightman, saying that an action for breach of promise to marry is not against public policy, but that it should be limited to not include damages for the expectation interest.

LOVING V. VIRGINIA: Hardisty said that since the majority does not use the words "fundamental right" to describe the right to marry, some scholars suggest that the Court never intended to bestow such protection on the right to marry. Other see it as an oversight on the part of the Court. Hardisty said this was a moot court problem when he was in law school, but that he thought it was a dull question because it was clear how the Court would come out when it took up the question of race-based restrictions on marriage. He pointed out that the Court left stand the decision in Naim v. Naim, suggesting that the Court first wanted to integrate the schools (in Brown v. Board of Education in 1954) before it integrated marriage. At the time of this ruling, 13 states had laws against whites and non-whites wedding. He also mentioned that this case was the subject of a movie, "Mr. and Mrs. Loving," starring Timothy Hutton and Lela Rochon.

ZABLOCKI: A key part of the holding, Hardisty said, is that the man could not have been granted judicial approval to marry, even if he had tried. This law came down particularly harshly on the poor, and the fact that only one (medium-sized) state had such a policy of holding deadbeat dads (exclusively, juding from the use of the word "he" in the language of the statute), accountable before they could remarry.

Friday, October 8
PAGES: 208-224
CASE: Washington Statewide Organization of Stepparents v. Smith

BAKER V. NELSON:The two parts of the holding were discussed:
1. Where a statute employs the term "marriage" without defining it, then "marriage" means the union between persons of the oppostie sex as husband and wife.
   RATIONALE:
   
   1. The term "marriage" has an ordinary meaning that the court decided to retain.
   2. The legislature did not intend for the marriage statute to include same-gender unions.
   3. This interpretation harmonizes with other parts of the statute which use the words "husband and wife" and "bride and groom".
   NON-JUDICIAL FACTORS:
   
   1. Other sections of Minnesota law probably criminalize same-gender intercourse and other forms of "sodomy" so that permitting same-gender unions would not be in harmony with the rest of the state code.
   2. Public opinion was (and still is) against permitting same-gender unions.
   3. The Court didn't want to settle this matter judicially.
   
   
2. The prohibition against same-gender marriages does not violate the Eighth, Ninth or Fourteenth Amendments.
   RATIONALE:
   
   1. Pragmatism. This was a month before the decision in Reed v. Reed was handed down, which was the first case in which the Court had struck down a gender classification as violative of the Equal Protection Clause of the Fourteenth Amendment.
   2. Religious conservatism. Note how the majority seems also to take a swipe at evolution with its contention that marriage between man and woman for the purposes of procreation is "as old as the book of Genesis." Hardisty pointed out that the Book of Genesis was written tt a specific time, and that marriage is much older than that (dating back to the Jewish tradition). If the majority meant that it was as old as Genesis in terms of Adam and Eve, it would seem that it has dismissed the theory of evolution in favor of creationism.

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