Category Archives: family

Clark v. Jeter

486 U. S. 456

June 6, 1988

For illegitimate children, Pennsylvania had a 6 year statute of limitations for seeking child support. No statute of limitations existed for legitimate children. A single mother tried to obtain child support 10 years after her daughter’s birth, and charged that the statute of limitations violated the Equal Protection clause. The Supreme Court had previously held that classifications based on legitimacy were subjected to intermediate scrutiny.

The Supreme Court unanimously held the 6 year limit invalid under the Equal Protection clause (the Court also brushed aside a preemption challenge as not properly raised). O’Connor said that the two principal considerations under intermediate scrutiny were whether the time limit was reasonably long, and whether the time limit was strongly related toward concerns about fraud or stale evidence. In a rather conclusory manner, O’Connor posited that 6 years was still too short for a single mother to realize that she needed child support, and that advances in DNA technology made concerns about fraud or stale evidence not worth listening to. Furthermore, Pennsylvania allowed illegitimate paternity to be established more than 6 years after birth in some other contexts, making the 6 year limit for child support even less valid.

At a minimum, Rehnquist and Scalia should have dissented. This ruling is fairly blatant ipse dixit activism. 6 years is plenty of time to seek child support, and I have no sympathy for anyone who misses such a ridiculously long deadline. Illegitimacy, much like fornication in general, is a terrible thing, and not something the law should in any way encourage. Assuring single mothers that they could extract money out of the father after ignoring him for a decade was hardly the right message for the Court to send out in 1988. Back then, the illegitimacy rate was just under 30%. Now it’s just over 40%.

A Biblical family structure blesses everyone. The children are blessed, the husbands and wives are blessed, the community is blessed, and the whole nation is blessed. Striving toward a Biblical family structure will sometimes result in incidental stigmatization. O’Connor and the post-Christian Supreme Court are so horrified by incidental stigmatization of illegitimacy that they will use the Equal Protection clause to kill any law that fights illegitimacy. This may slightly lessen the stigma that a small number of illegitimate children feel, but in the aggregate, the nation is cursed by such a marshaling of priorities.

What is really worse: a 5% illegitimacy rate with some legal stigma, or a 40% illegitimacy rate with no legal stigma? Similar equations could be made for abortion or divorce. No one likes being stigmatized, but are the hurt feelings of a few really more important than the additional millions of lives scarred or even killed because divorce, single motherhood, and abortion have been made so legally easy?


Hicks v. Feiock

485 U. S. 624

April 27, 1988

Phillip Feiock was very delinquent in child support payments, and so a California court imposed a 25 day jail sentence, suspended during a three year probation period. Feiock argued that he was financially unable to pay child support, and that the government should have the burden of proving ability to pay before imposing jail time. Under the Due Process clause, the government perhaps would have to prove ability to pay in a criminal case, but not in a civil case. But which was this?

The Court ruled 5-3 that this factual question didn’t have a clear answer, and remanded the case for more clarification (Kennedy did not participate). White said that some questions of the case could not be addressed, because they concerned interpretation of state law. On the civil/criminal question though, precedent was very clear. Criminal cases involved definite, punitive sanctions, like set jail sentences, and fines paid to the court. Civil cases involved conditional, rehabilitative sanctions, like jail time until a condition is complied with, or fines paid to another party. If Feiock made all the child support payments, it was unclear whether the jail time and probation would go away, so White ordered the remand.

O’Connor, joined by Rehnquist and Scalia, dissented. She thought the ruling of the California court was definitely civil. Unlike the majority, she thought it was clear that the jail time and probation would be gone if Feiock simply complied with the child support payment schedule. In my opinion, the facts were unclear enough that a remand was warranted, but regardless, I have to say that I hate the common assumption that civil proceedings do not require Due Process. Civil actions can sometimes destroy your life worse than criminal actions, and defendants do deserve some protection against getting rear-ended by horrible, unjust decisions.

Sorry for going a bit MRA here, but the cold, unforgiving self-righteousness of the child support system really turns me off. It’s a near lawless racket where innocent children are used as vicious clubs against imperfect men. Google the story of Carnell Alexander, and remember that there are many more like him who never even make the news. It’s a literally kafkaesque world out there, and so long as self-righteous demons make it impossible to stand up for ‘deadbeat dads,’ nothing will ever change.

Thompson v. Thompson

484 U. S. 174

January 12, 1988

In a set of facts so freakishly similar to the Smolin case that it’s spooky, Susan Thompson divorced her husband David, and moved from California to Louisiana, taking their son with her. California courts awarded child custody to David, while Louisiana awarded child custody to Susan. David asked the federal courts to serve as referee between the states, but Susan argued that no law gave him a cause of action to request for federal court intervention.

Unanimously, the Supreme Court held that no federal cause of action existed. The Parental Kidnapping Prevention Act created no such explicit right, and Justice Marshall could not find an implicit one either. He demonstrated that the Act was intended to flesh out the requirements of the Full Faith and Credit Clause, and not to give private citizens grounds for a federal case. The limited legislative history, and the goals the act was intended to accomplish were in accordance.

Scalia concurred in judgment. In a section joined by O’Connor, he took issue with Marshall’s baffling statement that Congress could potentially create a cause of action without specifically intending to. Going on alone, he said that in the interest of simplicity, the Supreme Court ought to simply announce that henceforth no implicit causes of actions would be judicially recognized. O’Connor published an utterly pointless one-sentence concurrence which stated her agreement with the first part of Scalia’s dissent.

The decision was legally correct. But the facts are just heartbreaking. Here’s a good word of advice to anyone planning to get married: never marry anyone who you do not trust 200% to always stick with you. No one ever thinks that their spouse-to-be will one day take their child and move across country, and yet it happens all the time. This savage and omnipresent destruction of families is the bitter fruit of our American obsession with “freedom” and “autonomy.” The decision to marry the wrong person can destroy your life, and your children’s lives in horrific fashion. Do not do it rashly.

Bowen v. Gilliard

483 U. S. 587

June 25, 1987

To simplify things things slightly, a 1984 law had altered welfare, so that the amount of welfare money a family would receive was reduced according to how much money that family received in child support payments. Obviously, this meant that many poor families had their overall incomes reduced. Gilliard, a mother of seven, contended that the new law violated both Due Process, and the Fifth Amendment’s takings clause, as it created undue coercion on families to make hard choices, and deprived individual children of their untrammeled right to child support.

The Court, with Stevens writing, upheld the law 6-3. When deciding how to spend money, Congress had broad discretion, and the desire to save millions of tax dollars was a rational reason for altering welfare. That the law sometimes affected family living arrangements did not subject it to higher scrutiny, so there was no Due Process violation. Stevens held it was not a taking either. Although the accounting had some confusing labels, the child support still belonged to the child. Moreover, neither welfare nor child support was an inalienable right under the Constitution, and each one individually was generally accepted to be liable to alteration through law. While the law could sometimes be harsh, it was the job of Congress to change it, not the courts.

Brennan’s dissent, joined by Marshall, largely talked past the majority opinion. Picking up on his theme in Rivera regarding the importance of parent-child relationships, he lambasted the law because under its accounting process, the child support money was designated as “state” money. Because the state rather than the parent was now the ‘official’ dispenser of the cash, Brennan argued that the law essentially severed the parent-child bond. He then recounted sob stories of a father who stopped paying child support after the law’s passage, and a child who went to live with her father so her mother and siblings could better share welfare money. Brennan could not stomach a law which caused families to make these sorts of gut-wrenching decisions.

Toward the end of his opinion, Brennan offered a detailed description of a potential welfare law that he would deem Constitutional. In one of the most transparent lies all year, he added that his prescriptions did “not represent an effort to second-guess Congress as to the most effective use of its funds, nor does it represent a threat to the discretion that program officials must inevitably exercise.” Blackmun said in his dissent that he mostly agreed with Brennan’s arguments.

This, by far, was the most depressing case of the entire term. Your heart has to break for all of the children in impoverished single parent homes. It’s hard to take Brennan’s angry moralizing about the poor children seriously though, because it was liberals like him who put so many million innocent children in these terrible situations in the first place. It was liberals like him who worked feverishly to destigmatize divorce, fornication, single parenthood, and monogamy. They remained silent in the face of the mass resulting family destruction, and then belatedly spoke up only when the government didn’t provide as much aid as it probably should have in the brutal aftermath.

Rivera v. Minnich

483 U. S. 574

June 25, 1987

Gregory Rivera was the alleged father of Jean Marie Minnich’s baby. When Minnich sought to establish his paternity in court, Rivera protested that the ‘preponderance of the evidence’ standard (i.e. more likely than not) was far too low. In a case called Santosky, the Supreme Court had held, on the basis of the Due Process clause, that parental rights could only be terminated upon the showing of ‘clear and convincing evidence’ – a much higher standard. Rivera argued that the standard for establishing paternity should be the same as that for ending it.

The Court ruled 8-1 that ‘preponderance of the evidence’ was an acceptable standard. Stevens emphasized that most states used that standard to establish paternity, and accordingly the Court should be wary of demanding a higher standard. He also rejected the claim that Santosky required legal symmetry in the burden of proof. Destroying the parent-child relationship is an extraordinary step, since it interferes with a familial bond of paramount importance. Requiring a father to own up to a familial bond which has already been created was very different in character. Stevens also said that the low proof standard was necessary to protect the interests of the mother and child.

O’Connor concurred in judgment – she had disagreed even with Santosky’s imposition of the ‘clear and convicing’ standard for termination. Brennan was the lonely dissenter. The financial consequences of paternity were so profound, and the penalties for shirking them so severe, that he felt a higher standard of proof was warranted. Furthermore, Brennan pointed out that parenthood possesses ineffable moral and emotional dimensions. Such an important relationship should not be formed based on mere 51%-49% probability. He concluded by observing that lying does occur in contested paternity suits, and that existing technology to determine parenthood was now 99% accurate.

Despite its brevity, and its surprisingly restrained dissent, this is easily one of the worst decisions of the entire term. Brennan was totally right, and he should have been far more forceful (Digression: for four pages in United States Reports, we saw the rarest of all sights – William Brennan actually acting like a Roman Catholic. Passenger Pigeon sightings may or may not be more common). Parenthood is far too important to play probability games with, especially when technology can now provide definitive answers. Quite apart from the rights of the alleged father, a child ought to have the right to know for certain that the man the legal system calls his father truly is so.

California v. Superior Court of Cal., San Bernardino Cty.

482 U. S. 400

June 9, 1987

Richard and Judith Smolin divorced, and Judith was given custody of the children. She remarried James Pope, and began moving around the country, finally settling in Louisiana. After being frustrated for years in his attempts to have visitation with his children, Richard obtained custody of them through the California courts, but Judith refused to turn the children over. As a last resort, Richard drove to Louisiana, found his children at a school bus stop, and took them back to California. At Judith Pope’s request, Louisiana charged Richard Smolin with kidnapping, and requested that California hand him over. California refused, claiming that Smolin could not possibly be guilty of kidnapping because he had legal custody of the children.

The Court ruled 7-2 that California had a Constitutional duty, under its extradition clause, to hand over Smolin. O’Connor wrote the majority opinion, which stressed that extradition requests were not the proper time for states to make judgment calls about the innocence or guilt of the accused. As long as a state followed correct procedure in making the extradition request, the other state could not refuse based on its own legal view of the charges.

Stevens dissented, and was joined by Brennan. He found that Smolin’s custody of the children was so well established legally that it was impossible for Louisiana to really consider him a fugitive from justice. If such baseless extradition requests had to be honored, Stevens argued, state boundaries would be meaningless. He disputed O’Connor’s treatment of extradition precedents, and pointed out that federal kidnapping law required all states to respect the custody judgments of other states. Stevens concluded by predicting that parents would continue to abuse the extradition system in custody cases.

Remarkably, the seven Justices in the majority were very obviously furious at Judith Pope and the State of Louisiana. They agreed with the dissent that, on the evidence, Smolin was innocent of the kidnapping charge. “We are not informed by the record why it is that the States of California and Louisiana are so eager to force the Smolins halfway across the continent to face criminal charges that, at least to a majority of the California Supreme Court, appear meritless. If the Smolins are correct, they are not only innocent of the charges made against them, but also victims of a possible abuse of the criminal process.” This sort of language is about as close as the Court will ever come to telling a prevailing party “f*ck you.”

I’m not sure whether I agree with O’Connor or Stevens. More than anything, I’m simply depressed by the facts of the case. My heart goes out to the children, Jennifer and Jamie, who were grievously wounded by their parents. Vitriolic custody battles scar the soul like almost nothing else in the judicial system. Children are not meant to be ripped apart from a father or mother.

What makes all of this so tragic is that the answer has always been available in plain sight. Chaste, self-sacrificing, lifelong monogamy has been commended to humanity since Genesis 2. And every empirical experience since then has abundantly proven that deviations from that design bring only misery, bitterness, poverty, heartbreak, and darkness. And still we reject God’s design, on the plea of preserving autonomy and ‘freedom’ – and to those altars, we sacrifice millions of ruined lives, calling them acceptable collateral damage. “In those days there was no king in Israel; everyone did what was right in his own eyes” – Judges 21:25.

Turner v. Safley

482 U. S. 78

June 1, 1987

A prison in Missouri prohibited inmates from corresponding with non-relative inmates, and required any marriages involving inmates to be subjected to approval from the superintendent. Both of these rules were challenged as undue burdens on the Constitutional rights of prisoners.

The Court ruled unanimously that the marriage rule could not stand, but upheld the correspondence rule 5-4. Justice O’Connor reviewed several prison precedents, and concluded that prison regulations should be upheld if they reasonably related to their aims, and were not exaggerated responses. She stressed that deference needs to be given to the judgments of those who run prisons, since they must control dangerous environments. Because of the danger of incipient conspiracies, and the impossibility of reading all correspondence, O’Connor felt the communication rule was reasonable. At the same time, she found the marriage rule overbroad, since only a few marriages would potentially cause trouble, and since marriage was such a fundamental human right.

Stevens, joined by Brennan, Marshall, and Blackmun, dissented. He observed that the rules in this Missouri prison were not necessary because they were stricter than those used in most other prisons, and that less restrictive means to control prisoners could be found. More importantly, he pointed out that the majority opinion rejected the factual findings of the District Court, and accepted unjustified claims of the prison without any scrutiny. Stevens wondered aloud why the majority did not similarly accept at face value the prison’s contentions about the marriage rule.

I think Stevens is right that the majority was inconsistent in its treatment of the two rules. But I would go the opposite direction from him and say that both rules were Constitutional. Prohibiting prisoners from marrying is just good public policy. Scripture says that a husband who cannot provide for his family is worse than an unbeliever. There is no ‘right’ to marriage – instead it must be seen as a privilege for those able to handle its immense responsibility.

Rose v. Rose

481 U. S. 619

May 18, 1987

Mr. and Mrs. Rose divorced after having two children. Mr. Rose was totally disabled by Vietnam war injuries, and his only income came from government veteran’s benefits. Mrs. Rose got custody of the children, and Mr. Rose was ordered to pay monthly child support. He argued that veteran’s benefits should be immune from court-imposed liabilities such as child support.

The Court ruled 8-1 that child support could be imposed on someone whose only income was veteran’s benefits. Marshall wrote the majority opinion, which rejected many statutory arguments that state-imposed child support was preempted. A provision which allowed the veteran’s affairs administrator to allocate child support money did not matter, since it did not purport to divest state courts of the right to make allocations too. Neither did a provision matter which said that decisions of veteran’s affairs officials were final. In response to a provisions which exempted a beneficiary of veteran’s benefits from any judicial seizure, Marshall wrote that children could be considered beneficiaries within the law’s meaning. A final provision which said that veteran’s benefits could not be used for child support was found inapplicable on the grounds that it only applied when the funds were still possessed by the veteran’s agency, rather than when Mr. Rose had received the funds.

O’Connor, joined by Stevens, concurred in most of the opinion, but felt the majority did not give full value to the importance of the parent-child relationship, and suggested that no law should be interpreted to abrogate a child support obligation. Scalia concurred in judgment. He thought the majority considered the purposes of the various statutory provisions too much, and should have stuck to the plain text, which he agreed did not support Mr. Rose’s case. White dissented, and proffered some interesting evidence that Congress did intend veteran’s benefits to be exempt from even child support obligations. He also thought that some precedents could not be adequately distinguished.

Short of abortion, there is probably no legal right in America which is more evil, more heartbreaking, and more demonic than no-fault divorce. Marriage is the most beautiful of all human relations, and it was majestically designed by God Himself to last for life. In divorce, the resplendent joy of two becoming one is brutally carpet-bombed, and what was never meant to be separated is bitterly ripped apart. One time, I was at a gathering of divorce lawyers. Hor d’oeuvres and wine were served – the contrast between the dignity and elegance of the event and the essential barbarism of their work was grotesque.

I’m not sure which side is right in this case. It’s hard to care much about the post-divorce stuff, because the great tragedy has already happened. I don’t know whether Mr. Rose or Mrs. Rose or both were responsible for the divorce. But my heart breaks for them, and my heart breaks for their children. For it is children who visibly demonstrate why divorce is so barbaric. In a child’s body, two truly have become one in the literal sense, and separation is not possible. Child support money can never replace what is lost forever when a husband and wife end their holy covenant.