In 1997, Dennis Crocker fought a modification of child support on the grounds that "the statute that authorizes a court to order a divorced parent to support the parent's children while the children are attending school, is unconstitutional."
The trial court agreed with father. It concluded that "ORS 107.108 permits a child support obligation to be imposed" on "divorced or separated parents of qualifying children between ages 18 and 21" but not on married parents of children who have the same characteristics. The trial court also concluded that "ORS 107.108 grants a privilege, i.e., the right to seek and obtain an order compelling the payment of child support, to one class of citizens--qualifying children between ages 18 and 21 whose parents are divorced or separated--that is not granted to children in like circumstances whose parents are married."
Because it concluded that there was no rational basis for the distinction made by ORS 107.108, it concluded that the statute violated Article I, section 20, of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution. Accordingly, the trial court dismissed mother's motion to modify father's child support obligation.
On appeal, the mother argued that, because father was not a member of the disfavored class of children who are denied the privilege of obtaining court-ordered support, was is not someone who can challenge the grant of the privilege to others. The Oregon Attorney General and the Support Enforcement Division of the Department of Justice who appeared amici curiae, joined in by arguing that ORS 107.108 did not violate either constitutional provision.
Now here is where it starts getting interesting.
The Appellant Court disagreed with mother in that “Father is the divorced parent of children who are attending school, so he is subject to the requirement in ORS 107.108 that he provide court-ordered support to them. Because father is directly affected by the decision embodied in ORS 107.108 to grant a privilege to his children that is denied to others, he can challenge the grant of that privilege. Moreover, the grant of the privilege of court-ordered support to children of divorced or separated parents embodies a corollary grant of an immunity from court-ordered support to parents who are not divorced or separated and who have children attending school. Father is a member of a disfavored class of parents who are denied that immunity, so he unquestionably is someone who can challenge the grant of that immunity.”
The Appellant Court ALSO disagreed with Oregon Attorney General and the Support Enforcement Division of the Department of Justice in that ” under the statutory scheme, families comprised of married people who live together and who have at least one child attending school are treated differently from those comprised of at least one such child whose parents are married but do not live together, see ORS 108.110, are divorced or separated, see ORS 107.108, or have never married, see ORS 109.055. Relevant to this case, married parents who are living together are given an immunity from an obligation to support their children attending school that is not given to divorced or separated parents. We conclude that father is a member of a "true class." The class is comprised of people who, like father, are divorced parents of children attending school. They can be identified by their status as divorced parents of such children and not by the challenged law. Because father and the other members of his class could still be identified by their shared personal characteristics if the legislature repealed ORS 107.108, they comprise a "true class." ”
Although father has established that ORS 107.108 treats parents who belong to his class differently from other parents, that difference in treatment does not implicate Article I, section 20, unless father's class is a "true class." See Ag West Supply v. Hall, 126 Or App 475, 478, 869 P2d 383 (1994). A "true class" is a class comprised of people who share characteristics that exist "apart from the law in question." State v. Clark, 291 Or 231, 240, 630 P2d 810 (1981). Generally, that means that the people in the class are treated differently from others based on their shared "antecedent personal or social characteristics or [their shared] societal status." Hale v. Port of Portland, 308 Or 508, 525, 783 P2d 506 (1989).
There you have it! NCPs are in fact, a “true class” and their “right” to “equal protection” under the law is being CLEARLY violated, so why did the Appellant Court reverse and the Supreme Court affirm? I told you it was “interesting”.
Father does not dispute that the state has an interest in having a well-educated populace. Although children aged 18 to 21 have no general right to have their parents pay for them to attend school, it cannot reasonably be disputed that the state has an interest in having parents support their children in that endeavor. ORS 107.108 advances that interest by providing the means for some children to attend school. The issue, then, is whether the statutory scheme by which the state has chosen to advance that interest--a scheme that distinguishes among true classes--is rational. Father argues that it is not. He notes that many children attending school are in need of financial support and argues that there is no rational reason to target for assistance only those children whose parents are divorced, separated, or unmarried or are married but living apart. The trial court agreed. We do not.
We conclude that the statutory distinction is rational. Even if most divorced or separated parents could cooperate sufficiently to decide whether to support their children attending school, legislators could rationally believe that, because of the nature of divorce and separation, there will be instances in which children will not receive support from their parents to attend school precisely because the parents are divorced or separated, despite the fact that the parents have the resources to provide the support and it is in the children's best interest for them to do so. It might be that, although both parents agree that they should support their child attending school, they disagree on how much each of them should contribute, so that one or both of them contribute nothing. It might be that the nature of the relationship between the parents is so acrimonious that they refuse to agree on anything. It might be that the parent who did not have custody when the child was a minor is unwilling to provide support precisely because he or she did not have custody. It might be that one of the parents who, when married, considered support for his or her child attending school to be a moral obligation, now considers it to be only a legal obligation and, hence, that the parent will provide support only if ordered to do so by a court. In short, legislators could rationally envision situations in which, but for the fact that a child's parents are divorced or separated, the parents would support the child while the child attends school. In that situation, the parents' marital status operates to thwart the state's interest in having parents support their children while the children are attending school. Providing courts with the authority to require those parents to support their children attending school is a rational response to that problem.
Deciding not to give courts authority to require parents from intact families to provide the same support is rational as well. Legislators could rationally assume that, in most instances, parents in intact families will be able to make reasonable decisions about whether to support their children attending school. Moreover, whatever the reasons those parents might decide not to provide that support, legislators could rationally believe that there will seldom be a situation in which, but for the fact that a child's parents are married and living together, the parents would have provided financial support to their child while the child attends school. In other words, the marital status of parents who are living together would not be expected to make them less willing to support their children attending school, but the marital status of divorced or separated parents could have that effect.
In sum, legislators could rationally believe that the most efficient way to advance the state's interest in having parents support their children attending school is to rely on parents to make those decisions in intact families and on courts to make those decision for families that are not intact. That policy decision does not become irrational simply because, on occasion, some married parents who have the resources to support their children attending school will refuse to do so. Nor does it become irrational simply because, under ORS 107.108, on occasion, a court may require separated or divorced parents to support their children attending school even when the parents' refusal to provide that support is for reasons completely unrelated to the separation or divorce. A statute does not have to be perfect in order for it to be rational. In other words, there does not have to be a perfect correlation between the state's interest and the means it uses to advance that interest. To a certain extent, the statute can be underinclusive or overinclusive, as long as the distinction that it makes among classes is reasonably related to a legitimate state interest. As we have already explained, ORS 107.108 is reasonably related to such an interest.
The distinction embodied in the statutes governing support for children attending school is analogous to the distinction that the legislature has made between married and divorced parents with respect to support for their minor children. Every parent has an obligation to care for his or her minor child. The state has a legitimate interest in ensuring that parents fulfill that obligation. Nonetheless, when a child's parents are married, the state generally does not interfere with the parents' decisions on how best to meet their financial obligations to their children. However, when parents divorce or separate, the state assumes that, as a result of the divorce or separation, many of them will no longer be able to work together to make responsible decisions about how to support their children. Accordingly, the state does not wait to see whether, despite the divorce or separation, the parents can decide how to meet their financial obligations to their children. Instead, it steps in to dictate how they will do that by authorizing courts to enter support orders that establish how much money each parent must contribute each month toward the care of the parent's children. See ORS 107.105(1)(c). Even though some married parents do not make appropriate decisions about how to care for their children and many divorced parents unquestionably do make appropriate decisions, the state has distinguished between parents with respect to their child-support obligations based on their marital status. Although not perfect, the distinction is rationally related to a legitimate state interest. So is the one in this case.
In conclusion, many children pursue some form of education after they reach the age of 18. The state has an interest in having parents support their children in those efforts. In countless situations, children attending school continue to rely on their parents for financial support, whether their parents are married, separated, or divorced or have never married. Unquestionably, there will be occasions when parents from all of those classes will refuse to support their children attending school even though they have the means to do so. Even if ORS 107.108 does not provide a perfect remedy for that problem, it represents a reasonable attempt by the legislature to address the situation in which the refusal by parents to support their children attending school is a direct consequence of the parents' divorce or separation. Therefore, we conclude that the distinction drawn by the legislature among classes of parents has a rational basis and does not violate Article I, section 20, on the ground that it lacks one.
In conclusion….as has been shown here, a “constitutional” argument is NOT going to be enough, we have to fight the “rational”, that because of the nature of divorce and separation, that two such parents cannot effectively co-parent, and how do we do that without ending up in a worse mess that the one we currently have because of the government’s tendency to swing from one extreme to another? By showing that it is that very “rational” that has caused the majority of the conflicts that exists today.