Marriage, Family, and Privacy in Contemporary America (PP 1-45)
Fundamental Right Test
1. Is it a fundamental right? If yes then…
2. Does the law discriminate on that right?
*Penumbras- express right or positive rights deeply rooted in the “traditions and conscience of our people” as to be fundamental and “implicit in the concepts of ordered liberty”
Equal Protection
*Look to see if two different groups are being treated differently
*Look at the following:
1. Immutable characteristics
2. History of the group
3. The ability of that group to organize themselves politically and to have voice
Three Levels of Scrutiny
-SS: compelling; narrowly tailored
-IS: intermediate; substantially related
-RB: law will be upheld if it is rationally-related to a legit gov’t purpose; default standard
The Relationship Between Families and the Law
*Moore v. City of East Cleveland
-John, Jr. there illegally b/c his parent was not present
-Held- a local ordinance may not restrict occupation of dwelling units to certain specified categories of related individuals
*Myers- English only rule was shot down
-It was the duty to give the family the right to teach children as they see fit
*Pierce- compulsory public school law struck down
*Prince- it is “cardinal” that the “custody, care and nurture of the child reside first in the parents”
*Yoder- challenge to Amish rule that children don’t finish school past a certain grade
The Evolution of the Right to Privacy
*Griswold v. Connecticut- a Connecticut law criminalizing the use of contraceptives violated the right to marital privacy
-Looking at substantive DP
-This is another case in a series of familial privacy beginning with Meyers and Pierce
-Rights derived from penumbras (9th A)
-This Court noted how Meyers stood for the proposition that one has the right to learn a foreign language (NO- it was about familial rights)
-The majority did discuss “deeply rooted” traditions somewhat
-CT argued that the prevention of contraception would prevent people from affairs
-Dissent: CT’s law were not unCon and the correct way to change the Con is via Amendments
*Eisentradt v. Baird- a Massachusetts law criminalizing the use of contraceptives by unmarried couples violated the right to equal protection
-The right to privacy recognized in Griswold extended to individuals, not married/unmarried couples
*Thus, this would violate EP
-This case is ju
t
-New liberty interest
Substantive Requirements for Entry into Marriage; Same-sex Marriage; Polygamy (PP. 78-128)
Substantive Requirements for Entry Into Marriage
Right to Marry
*Loving v. Virginia- a state may not prevent marriages b/n persons solely b/c they are of different races
* Zablocki v. Redhail- WI’s statute requiring a noncustodial parent to obtain a court order before receiving a marriage license, which may be issued only when the noncustodial parent is up to date on child support and such child(ren) is (are) not likely to become public charges, is unconstitutional because the statute violates the Fourteenth Amendment’s equal protection clause
-Court noted how a family is related to a good society
-Why is a family a building block of society and is it necessary?
*Marriage not needed to produce and raise children
-If the state is going to prevent one from marrying, the law will be subjected to SS
-This was not the least restrictive alternative
