Right to Privacy - Part 6

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy
.-- Louis D. Brandeis (part of his dissent in the case "Olmstead v. United States", 277 U.S. 438, 485 (1928))

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Legal Arguments:

F. The Search for a Compelling State Interest

In Public Policy

What public policy rises to the level of a compelling state interest to permit the state to invade the privacy area of marriage? Whatever the compelling interest, if it were compelling, all dissolution of marriages should be examined whether contested or uncontested to assure the policy was fostered. If there is a compelling state interest there should be no difference in how the courts treat parties of a marriage regardless of the length of the marriage. The compelling interest should be determinative as to permanent spousal support, not the length of the marriage, not whether the dissolution is contested, not the 217 factors in § 61.08, and the public policy interest should be called compelling and be contained in the purposes provision of the statute.

Any concern for "keeping the spouse off the public dole" undoubtedly originated at the time of coverture. Such thinking is not realistic today in light of Federal and State legislation, State judicial rulings, the equal employment opportunities available in the marketplace and Connor 668 So.2d. If indeed this was or is a public policy, why then is it not applied uniformly to all marriages regardless of length? Also the logical extension of the reasoning approaches absurdity because the reasoning flows that all a party need do to avert a life of poverty is to enter marriage for a long enough period of time dissolve his/her marriage and thus be afforded legislative and judicial protection from poverty for life-even as here if it puts the paying spouse into poverty.

Another concept offered as the reason for permanent spousal support is that a former spouse should not be placed in peril of poverty if a supporting former spouse can pay, Pimm v. Pimm, 601 So.2d 534 (Fla.1992). This is not a compelling State interest. If a spouse avoiding poverty was a purpose of Chapter 61 Fla. Stat. alimony provisions it was not listed in the purposes of the statute. There is further evidence the legislature does not have a strong concern for spouses being placed in peril of poverty. It has not consistently legislated the public policy. One example is the repealed motorcycle headgear protective law, § 316.211 (b) Fla. Stat. The State permits one older than twenty-one years who carries only $10,000 of health insurance to ride a motorcycle without a helmet. It makes no provisions for spouses or minor children whose breadwinner may die or be permanently disabled from an accident. The legislature does not require a married supporting spouse who rides a motorcycle without a helmet to carry life insurance for his spouse or mandate he must wear a helmet. If the State does not impose the duty of a life insurance policy on a married motorcyclist to protect spousal support during marriage, how can the State have a compelling reason to require him to carry life insurance for the spouse after dissolution of marriage? Under the current unconstitutional support laws it is not hard to conceive that in a court somewhere in Florida there is a dissolution proceeding pending where a supported spouse is petitioning the Court that because the supporting spouse rides a motorcycle he should be compelled to wear a helmet or purchase life insurance to assure lifelong spousal support. If the economic survival and betterment of the married parties was a legislative concern it seems that it would have been addressed when §316.211 (b) was passed.

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LEGAL INFORMATION AND RESEARCH CORNER:
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