As we prepare to celebrate Valentine’s Day, let’s take a moment to ruminate on how judges through the ages have addressed love and affection.
We’ll start with Justice Jackson of the US Supreme Court, who authored a dissenting opinion for a 1942 case involving two people who had left their homes and respective spouses and set up housekeeping as husband and wife. Jackson first lamented that the case involved three marriages among four people in the form of two broken families, and one going concern. He then recommended the court look past a contract analysis and “think of marriage as just marriage—a relationship out of which spring duties to both spouse and society and from which are derived rights,—such as the right to society and services and to conjugal love and affection—rights which generally prove to be either priceless or worthless….”
Indeed.
Justice Frankfurter also weighed in on love, this time in a 1945 opinion concerning a transfer by a man, in anticipation of their upcoming nuptials, of some stock to his fiancée. The question was whether the transfer took place as part of a contract or was merely a gift. Adopting the tax court’s position, Justice Frankfurter wrote “‘A consideration not reducible to a money value, as love and affection, promise of marriage, etc., is to be wholly disregarded…..”
Having thus determined that love and affection had no value, the Supreme Court decided the whole transfer was a gift and should be taxed as such.
Eventually the US Supreme Court recognized that love and affection could, in the right circumstances, have some value. In a 1978 opinion, Justice Stevens pointed out that the problem was not whether love and affection could be reduced to a monetary figure (it could); it was making sure that love and affection were the only thing that was valued. In that case, the wrongful death statute allowed damages for loss of love and affection from the decedent, but not for the survivor’s grief and mental anguish. The Court acknowledged that parsing the two categories was almost impossible.
Sometimes the Courts have extended their observations regarding love and affection to a bigger group. In 1985, Judge Goldberg, writing for the U.S. Fifth Circuit, made this pithy observation: “This case illustrates once again the unfortunate variety that the family, although ideally a nurturer of love and affection, often succumbs to the corrosive influence of avarice and financial calculation.”
Texas has an even longer history of cynicism. In 1896, the Texas Supreme Court decided if a husband’s creditor could seize property that the husband had previously conveyed to his wife for “$5 and love and affection.” Ruling in favor of the creditor, the Court noted that the law was “based upon the maxim that a man must be just before he is generous.” Conveying the property solely for love and affection was a sham transaction meant to defraud the creditor, and not even an extra $5 could save it.
Nor have the courts ignored Valentine’s Day. In 2007 Justice Ginsburg, writing for the US Supreme Court, addressed the case of an artist who displayed her antiwar artwork – consisting of nude individuals assembled into a peace sign – on a public Florida beach on Valentine’s Day. Notwithstanding the sentiment attached to that particular day, Ginsburg observed that Florida’s bathing suit rule was essential to protect the experiences of the visiting public, and that the lower court hoped the artist would continue to use the park “albeit not in the nude.”
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Virginia Hammerle is an attorney with Hammerle Finley Law Firm. She is entering her 40th year in the practice of law. She is Board Certified in Civil Trial Law by the Texas Board of Legal specialization. Contact legaltalktexas@hammerle.com to receive her firm’s newsletter.
