2 results
1 - The Legacy of Loving
- Edited by Kevin Noble Maillard, Rose Cuison Villazor
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- Book:
- Loving v. Virginia in a Post-Racial World
- Published online:
- 05 July 2012
- Print publication:
- 25 June 2012, pp 13-26
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- Chapter
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Summary
What has Loving v. Virginia meant in American law? Loving’s legal and doctrinal legacy is threefold. Loving has been used to define and affirm the fundamental right to marry, to enforce federal constitutional limits on domestic relations, and to invalidate racial classifications and other practices that perpetuate racial subordination. Before Loving, the Supreme Court’s role with respect to marriage law was limited to refereeing conflicts among the states, who had long differed over the substantive restrictions on marriage, and, even more stridently, about the accessibility of divorce. Increasing mobility and the rise of divorce mills made conflicts between states about the proper regulation of marriage and divorce a common occurrence, disputes that reached the Supreme Court’s doorstep on occasion. Through those decisions, the Supreme Court – and, to a greater extent, lower federal and state courts – developed an approach to interstate recognition that drew on notions of comity, pragmatic considerations about the need for portable personal status, and, where applicable, principles of the Full Faith and Credit Clause.
There was no federal law norm about the right approach to regulating marriage and divorce before Loving, and thus no substantive principles for the Supreme Court to bring to bear on the few family law cases it heard. This limited involvement was thus consistent with the long-standing belief that domestic relations law was reserved to the states. Indeed, prior to Loving, the Supreme Court had invalidated not a single state marriage or divorce law, despite significant variations among state codes, and had often made clear its belief that marriage was a matter for the states to regulate. As Justice Field wrote in Maynard v. Hill, an 1888 case involving the validity of a legislative divorce granted by the Oregon Territory to a Vermont husband, “Marriage … has always been subject to the control of the legislature.” Pre-Loving, then, the Supreme Court’s deference to state substantive norms regarding marriage was essentially complete. Thus, by invalidating under the U.S. Constitution a state law that restricted marriage based on race, Loving heralded a new era for the Supreme Court by including federal constitutional norms within an area – domestic relations – that traditionally fell within state domain.
8 - The ALI Property Division Principles: A Model of Radical Paternalism?
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- By John DeWitt Gregory, Distinguished Professor of Family Law, Hofstra University
- Edited by Robin Fretwell Wilson, University of Maryland, Baltimore
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- Book:
- Reconceiving the Family
- Published online:
- 25 January 2010
- Print publication:
- 17 July 2006, pp 163-175
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Summary
This chapter addresses the ALI's proposals regarding property division upon dissolution. Consideration of this single well-worn subject might at first glance appear to be a fairly routine exercise. After all, there are currently a great many books, written for the edification of practicing lawyers, that treat various aspects of the subject of property division at divorce, together with a number of treatises, outlines, and handbooks for students that deal with the subject, and a slew of law review articles dissecting myriad issues relating to property distribution that defy classification or accurate numbering. Anyone who takes comfort from the fact that this glut of material exists to address the subject of property division is in for a rude and dismaying awakening when first confronting the Principles recommended by the ALI.
The Principles are set out in a volume that consists of more than a thousand pages of text. Concededly, a reader's focus on any number of provisions in any single chapter, including many of those in the property division chapter, will aid the reader's comprehension of the subject matter that the provision purports to address. At the same time, however, there are critical and often complex relationships between the property division chapter and several other chapters of the Principles. The reader who devotes his or her attention only to the property division principles will surely fail to see a number of snakes hiding in the tall grasses of other provisions.