 Due
Process Clause prohibits a state from
denying, because of inability to pay,
access to its courts to individuals who
want to divorce.


Grew out of Griffin v. Illinois, a criminal case decided
nearly 30 years before Boddie
Griffin holding: under 14th Amendment a state is
prohibited from denying a criminal defendant access
to court to appeal a conviction based on inability to
pay for trial transcript
• Justice Black: “there should be no ‘invidious
discrimination’ in criminal trial procedures
because all individuals have a right to court access
 Starting
in 1960s, courts have applied Griffin
rationale to other aspects of criminal
processes
• Right to counsel and conviction appeals
 Not
until Boddie that indigent civil litigants
saw access to justice recognized
• Arthur LaFrance: “initial inquiry was not
whether the problem of costs was
important, rather, the question was
whether law was favorable”
• How can we extend Griffin past criminal
law context?
 Due
Process Clause went through
extraordinary amount of changes before it
could pave way for successful access to
justice arguments
 Magna Charta (1216): first document
defining power of government and
recognizing notions of due process
 After Civil War: 14th Amendment added to
Constitution
• 4 protections: procedural due process, substantive
due process, prohibition against vague laws, and
vehicle for the incorporation of the Bill of Rights.
 Took
years and several
cases, notably the
Slaughterhouse cases, for
incorporation of Bill of
Rights’ individual liberties
into 14th Amendment


Before 14th Amendment applied to states: essentially
state and local govts. were free to violate
constitutional rights because of faith in state
constitutions and understanding Bill of Rights only
applied to federal govt.
Two types of due process: procedural and
substantive
• PDP protects individuals from coercive power of govt. by
ensuring adjudication processes under valid laws are fair and
impartial
• SDP protects individuals against majoritarian policy
enactments which exceed the limits of governmental
authority—that is, SDP deals with liberty interests or the right of
people to live without unnecessary and arbitrary government
interference, regardless of how fair the process of enforcement
actually is


Courts largely abandoned Lochner era pproach when substantive due process was
used to strike down minimum wage and labor laws in order to protect freedom of
contract.
• Boddie: revival of substantive due process to strike down state laws
U.S. v. Carolene Products Co.: Today, Court focuses on three types of rights under
substantive due process :
• rights enumerated in and derived from the first eight amendments in the Bill of
Rights;
• right to participate in the political process (e.g., the rights of voting, association,
and free speech); and
• rights of “discrete and insular minorities.”

Court usually looks first to see if there is a fundamental right, by examining if the
right can be found deeply rooted in American history and traditions.

Where right is not a fundamental right, the court applies a rational basis test
(rationally related to legitimate govt. purpose)

If the court establishes that the right being violated is a fundamental right, it
applies strict scrutiny. (compelling state interest)
 LaFrance
argued both types of due
process were violated, but majority clung
to substantive due process as basis for
their decision
• Marital institution (right to terminate marriage)
• Right to petition for redress of grievances (1st
Amendment)

Right to marry is fundamental and comes from
“liberty” provision of Due Process Clause
• Loving v. Virginia: “marriage is part of pursuit of
happiness and fundamental to existence and survival of
man”
• Zablocki v. Redhail: state laws that do not unduly burden
right to marriage are acceptable

Meyer v. Nebraska: term “liberty” has been
interpreted to denote not merely freedom from
bodily restraint but also right of the individual to
contract, to engage in any of the common
occupations of life, to acquire useful knowledge,
to marry, establish a home and bring up children,
among others
 Justice
Douglas’ concurrence in Boddie
• Indigents should be regarded as protected class
because “more affluent can obtain a divorce;
indigent cannot”
 LaFrance
originally argued gendered
discrimination since exclusion of filing
divorce cases fell disproportionately on
women, but this argument fell short



When the Framers first drafted the Constitution, it had no
provision ensuring equal protection.
In 1865, Congress enacted the Equal Protection Clause in
order to properly deal with blacks who faced black codes to
the disgust of the Southern states.
• Black codes prevented blacks from suing, giving
evidence, and being witnesses; they received harsher
punishment for crimes, etc.
In 1954, the Court finally used the clause to strike down the
separate but equal doctrine in Brown v. Board of Education





Rests on primary question of whether govt. has a sufficient
purpose for its discrimination, and purpose depends largely on
type of discrimination involved
Strict scrutiny: race or national origin discrimination involved and
can be met if there is a “compelling government purpose”
Intermediate scrutiny: gender or non-marital children
discrimination and can be met if discriminatory law is
substantially related to an “important government purpose.”
Rational basis: lowest form of scrutiny that applies to equal
protection violations, and law must be “rationally related to a
compelling governmental purpose.”
Court has held equal protection can apply when the government
discriminates against individuals on the basis of exercising a
fundamental right


Welfare recipients, all women, residing in
Connecticut who were unable to pay a $60 filing fee
to start the process of dissolving their marriages.
Counsel for the appellants was Arthur LaFrance, and
counsel for the appellees was Raymond Cannon.




Received his undergraduate degree from
Dartmouth College where he graduated with
honors and a distinction in American History.
Graduated from Yale Law School where he was
part of the Procedure and Advocacy Division
and received numerous moot court and thesis
awards.
Since Boddie, visiting professor at schools such
as Canterbury University in New Zealand, the
University of Houston and Northwestern
School of Law in Chicago.
LaFrance has also participated in other public
interest litigation, aside from Boddie.
• filed amicus briefs in Oregon v. Ashcroft, a
Ninth Circuit and Supreme Court case
dealing with assisted suicide .
 “Chief
Justice Burger sounded like God”
 Arguing
before the Supreme Court was the
ultimate thrill as a young legal services
attorney and then professor
 Did
not realize case would still be standing
40 years later
 Believed
he won the case after oral
arguments
 Named
appellant in the case—was
supposed to be Bertha Barker, but LaFrance
petitioned to have Boddie’s name first
 Highly intelligent and witty
 Worked as a paralegal for LaFrance after
Boddie case
 Children active in law and medical fields
• Daughters are nurses
• Son, Honorable Reginald Boddie, is currently serving
on the New York City Civil Court in Kings County
 Many
of the women he represented had
already started dating other men who
offered to pay their filing fees so the
women could divorce their husbands.
 Only
two women benefitted from the
court’s ruling out of about twenty women
that began the litigation with him