Due Process: Oklahoma
Due Process: Oklahoma
Due Process: Oklahoma
PLAINTIFF DEFENDANT
Violates substantive due process as it limits the State may intrude and impose controls over the
choice on marriage partners - “against liberty” institution of marriage and who may avail because
it has a specific interest in the family and who
may contract marriage.
Use the consti provisions on family, how the state
has an interest in marriage as it is a social
institution and that families are instrumental in the
country’s policy framework
EQUAL PROTECTION
PLAINTIFF DEFENDANT
Equal protection clause according to Ichong v As the state has a substantial interest and can
Hernandez: “The equal protection of the law impose regulations and control over the institution
clause is against undue favor and individual or of marriage, it can classify who may or may not
class privilege, as well as hostile discrimination or contract marriage.
the oppression of inequality. It is not intended to ● The classification made is justified
prohibit legislation, which is limited either in the because of the intent of legislature to
object to which it is directed or by territory within follow natural law, procreation and
which is to operate. It does not demand absolute stability of the family
equality among residents; it merely requires that
all persons shall be treated alike, under like
circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal
protection clause is not infringed by legislation
which applies only to those persons falling within
a specified class, if it applies alike to all persons
within such class, and reasonable grounds exists
for making a distinction between those who fall
within such class and those who do not.”
(http://www.lawphil.net/judjuris/juri1957/may195
7/gr_l-7995_1957.html)
(http://sc.judiciary.gov.ph/jurisprudence/2010/febr
uary2010/189698.htm)
In the constitution, the family clauses do not The fundamental right to marry does not include a
distinguish between traditional and non-traditional right to make a State change its definition of
families. marriage. And a State’s decision to maintain the
meaning of marriage that has persisted in every
culture throughout human history can hardly be
called irrational. In short, our Constitution does
not enact any one theory of marriage. The people
of a State are free to expand marriage to include
same-sex couples, or to retain the historic
definition.
The democratic process may be an appropriate “It is demeaning to the democratic process to
means for deciding issues such as same-sex presume that voters are not capable of deciding an
marriage, but no individual has to rely solely on issue of this sensitivity on decent and rational
the democratic process to exercise a fundamental grounds” Obergefell v Hodges
right
But this Court is not a legislature. Whether same-
sex marriage is a good idea should be of no
concern to us. Under the Constitution, judges have
power to say what the law is, not what it should
be. The people who ratified the Constitution
authorized courts to exercise “neither force nor
will but merely judgment.”
● This was from one of the dissents of
Justice Scalia (RIP).
PRIVACY
PLAINTIFF DEFENDANT
(1) Does Articles 1 and 2 of the Family Code violate the due process clause of the constitution?
- Yes, accdg to US jurisprudence
(2) Does Articles 1 and 2 of the Family Code violate the equal protection clause of the constitution?
- Yes, accdg to US jurisprudence
(3) Do same sex couples have a constitutional right to marriage based on the right to privacy or other
constitutional right?
- Yes, accdg to US jurisprudence (Griswold v Conneticut)