Monday, October 30, 2017
Michael Higdon (University of Tennessee College of Law) has recently posted two family law articles to SSRN:
Polygamous Marriage, Monogamous Divorce, 67 Duke L.J. 79 (2017). Here is the abstract:
Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more than one spouse at any given time but who nonetheless marry more than one person in their lifetime. The Article concludes that the state has a compelling economic interest in limiting marriage to two people. If polygamy were to become the law of the land, states could no longer prohibit bigamy. In turn, separating couples would lose one of the strongest incentives they currently have to choose formal divorce proceedings over the seemingly simpler option of mutual desertion: the threat of criminal charges for bigamy. In essence, a sequential bigamist could then marry multiple times in his lifetime without ever divorcing and, at the same time, without risking a criminal charge of bigamy. Such actions—dubbed “sequential polygamy”—would compromise the state’s interest in protecting its citizens from financial harms. After all, divorce proceedings provide the state with an opportunity to intercede into the process, thereby obtaining some assurance that those who are leaving a marriage are not doing so at their financial peril. With the legalization of polygamy, however, bigamy becomes a thing of the past, eroding the state’s ability to encourage divorce as a means of safeguarding the health and safety of its citizens. Most concerning is the impact this change would have on those living in poverty—the people likely to be hardest hit by any societal shift away from formal divorce. Finally, any attempts by the state to distinguish between bigamy and polygamy (for example, by permitting plural marriage but only if all spouses consent), would fail to ameliorate the resulting harm to its citizens.
Constitutional Parenthood, Iowa L. Rev. (forthcoming). Here is the abstract:
Despite having recognized the constitutional rights of parents almost a hundred years ago, the Supreme Court has not weighed in on the subject of who qualifies as a “parent” under the Fourteenth Amendment in thirty years. In light of the Court’s silence, the states have been forced to individually grapple with the issue of constitutional parenthood — a task made exponentially more difficult by the fact that the last thirty years have ushered in an avalanche of change when it comes to the American family. With such societal changes as advances in assisted reproduction, the legalization of same-sex marriage, and the increased frequency of divorce, remarriage and cohabitation, states now regularly encounter claims of parental identity that thirty years ago would have been unimaginable. Nonetheless, the states have persevered, adopting a number of approaches to deal with these increasingly thorny issues. The problem, however, is that the constitutional protections that are afforded parents now vary by state. Even more troubling is the fact that some states have defined “parent” in such a way as to discriminate against those families that do not comport with that states’ conception of the “ideal” family. To solve this problem, this Article makes two proposals. First, the Supreme Court must offer more guidance on how states may define constitutional parenthood. Although a definitive definition of the term is both impractical and unrealistic, the Court can and should delineate the outer boundaries of that constitutional standard. Second, taking a cue from some of the tests developed by the states, this Article proposes what exactly those boundaries should be so as to help craft a definition of constitutional parenthood that is more responsive to and protective of the twenty-first century family.