ohio state moritzI ran across an interesting law review article from Susan Frelich Appleton out of Ohio State University’s Moritz College of Law called Obergefell’s Liberties: All in the Family. The article joins the debate about whether the Obergefell case only protects liberty against the interference by the state regarding the right to marry (public liberty) or whether it can also compel the affirmative support or government action (private liberty). The article also explores the theoretical relationship between constitutional law and family law that the US Supreme Court’s liberty rulings have forged. Much of the article is an analysis and high level theoretical breakdown of the Obergefell opinion and cases relied upon by the Court for its opinion.

The conclusion of the article bears consideration in pointing out that the fear of many scholars in the wake of Obergefell was that there would be a trend toward “glorification of marriage” to the marginalization of other forms of family and relationships, inviting discrimination against nonmarital relationships. The author points out that decisions in Illinois and Michigan support this fear. However, to the contrary, it seems there is another scenario actually emerging where the expansion of the right to marry serves as a template for other relationships that could have private support obligations attached.

Constitutional protection of the relationship between nonmarital fathers and their children, once vulnerable (or even unacknowledged) under the “old illegitimacy,” shows how such expansion can occur and how such developments can facilitate neoliberal objectives. A more recent illustration can be found in some state courts that have extended parental status, including support duties, to partners of parents in the absence of biological, marital, or adoptive ties and have recognized both the financial and constitutional considerations at work in such situations. If this trajectory continues, those who have pushed for affirmative legal recognition of polygamy, of friendship, and of other intimate connections that could supply new private obligations just might succeed in their efforts.

The author questions whether society should pursue this bath in expanding the legal notion of family to provide expanding duties of support between nonmarried people, but acknowledges the conversation.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.