Assignment 2

M E M O R A N D U M

To:  You, Associate, Gewirtzman and Associates

From:  D. Gewirtzman, Partner, Gewirtzman and Associates

Re:  New Client: Chandler Bing

Hi there! We’ve got a new potential client and I need your help. Here’s the story:

Chandler Bing and Rachel Green are unmarried residents of the State of Arcadia and have been best friends since they met in college fifteen years ago. They have never been sexually or romantically involved. Two years ago, they decided to have a baby together using artificial insemination. Prior to the insemination, they had some initial discussions about Chandler’s continuing custodial or parenting responsibilities for the potential child: Chandler expressed a desire to have a continuing relationship with the child, but Rachel’s position was unclear and they did not reach any agreement about what form Chandler’s relationship with the child might take. They decided not to resolve those issues until after the insemination took place, and eventually, Rachel became pregnant through artificial insemination with Chandler’s biological child.

Three months into Rachel’s pregnancy, Rachel and Chandler had a fight and haven’t spoken since. Two months ago, Rachel gave birth to a daughter, Phoebe. Phoebe’s birth certificate identifies Rachel as the mother, but (at Rachel’s direction) the space next to “father” on her certificate was left blank. Since Phoebe’s birth, Chandler has not seen Phoebe despite repeated written requests asking Rachel to spend time with the child. Rachel has refused every request, and has made it clear that she does not want Chandler to have any contact with Phoebe.

Last week, Chandler approached me to ask whether he has a legal right to maintain some type of parental relationship with Phoebe, including visitation or custody. I responded that Chandler’s parental rights are governed under the Arcadia Family Code. Under Section 323 of the Code, only persons who are deemed “legal fathers” are entitled to assert custodial or visitation rights over children. The Code defines a “legal father” is defined as a male person who is (a) married to the biological mother of the child at the time the child was conceived, or (b) identified as the father on the child’s birth certificate. Individuals who are not “legal fathers” are not entitled to any custody or visitation rights to a child unless the father has a signed written agreement with the mother recognizing his custody rights. There is no dispute that Chandler is the biological father of the child, that Rachel and Chandler did not sign any sort of written agreement governing Chandler’s custody rights, and that Chandler did not provide Rachel with any financial support during the pregnancy.

I expect that if Chandler files a motion in state court seeking to have his parental rights recognized, Rachel will invoke Section 323. I’m wondering whether we have a viable basis for an as-applied challenge to the constitutionality of Section 323, which would remove a major legal obstacle for asserting Chandler’s parental interests.

I need your help to determine whether Chandler might have a viable substantive due process challenge to Arcadia Section 323. Specifically, I’d like you to articulate any reasonable arguments that Section 323 violates Chandler’s substantive due process rights, along with any arguments that might be made to defend the constitutionality of the statute. I do not need you to delve into the state interest advanced by Section 323 or the relationship between the interest and the means used by the statute – just focus on whether Section 323 potentially violates any of Chandler’s substantive due process-based liberty interests and what level of scrutiny a reviewing court might apply when examining Section 323. Moreover, I do not need you to assess the probability of success on the claim – I’m only interested in learning more about each side’s potential arguments. While he may have other potential constitutional claims, including denials of procedural due process and equal protection, I’ve asked other associates to analyze those potential claims.

Your submission should follow these guidelines:

• You should base your analysis solely on portions of the constitutional text and case law that we have covered in class up to and including the material covered in Class 12. You may also find it helpful to consult and use Troxel v. Granville from Class 13.

• In order to have your analysis reviewed, you must submit an electronic copy of your analysis with your name on it at or before the beginning of class to your TA on Tuesday, February 27.

• You must use Times New Roman 12-point font, a one-inch margin on all sides, and double-spacing.

• Your analysis must not exceed 800 words, you do not need to include a restatement of the underlying facts, and you are not required to Bluebook citations.

• Your analysis should reference any relevant portions of the Constitution and at least two cases we’ve read in class.

• Please state your name at the start of the memo, and do not consult any materials beyond the Chemerinsky casebook and your class notes.

• You are free to discuss the assignment with any current Constitutional Law II students or your TA, but any written work you submit must be entirely your own. This means you may not consult the written work of other students, you may not review the written work of other students, you may not use Chat GPT or any large language models or generative AI systems, and you may not receive any feedback from anyone on the written work you complete prior to submission.

Thanks for your help, and I look forward to reading your memo!