Substantive Law Study Support

Question 1:

            This question is designed to get students to really think about what the role of the state should be in regulating marriage. Students should be encouraged to move beyond reactions such as:  “the state shouldn’t allow someone to have two wives, because it’s against tradition.”  They need to be challenged to support their reasons, and identify specific “harms” that the state may be attempting to guard against.  The validity of these reasons should be discussed as well to determine if they hold up or not.  For example, a common argument against multiple spouses is that it may lead to impoverishment of the family.  However, the same issue is presented by divorce, particularly when someone if a spouse is paying support to another family, yet this is clearly not prohibited.

One interesting way to present this question would be to have a few students volunteer to be lawyers.  Two students could represent an individual who is seeking to challenge the law on constitutional grounds as s/he wishes to enter into a multiple marriage, and two students could represent the state seeking to defend the constitutionality of the law.  Each student could make a very short statement, and the class could be a panel of appellate judges who question the lawyers.  This can be a very lively and thought-provoking way of looking at the issues.  Note: you could also substitute a challenge to a state law prohibiting marriage between family members, such as , adult siblings.

Question 2

            This question is intended to get students to discuss the claim that the dissenting Justices made in Obergefell that is essentially a reiteration of the position that courts took in the first round of marital rights cases – namely, that what the parties were seeking was simply not a marriage. In short, their position is that marriage is inherently and exclusively a heterosexual institution. In contrasting this view with that of the majority, it is important, as noted above, that you set a “contract” for the conversation – that a divergence of views are welcome, but homophobic comments are to be avoided.

Question 3:

            This question is designed to get students to think about whether or not businesses that offer marriage-related services should be able to deny such services to a same-sex couple based on a religious objection to their marriage.  Critical here is a consideration of the clash between two deeply-valued constitutional rights – namely that of equality and that of religious freedom.   Notably, this is an area of considerable current conflict, which is likely to be taken up again by the Supreme Court.

As with question one, an interesting way to engage with these issues would be to have students role play being lawyers for each side in a contest between a couple seeking services and a business refusing to provide them.  Note that this could be linked to assignment two as students could base their role-play arguments on those they have developed in their memos.