FAMILY LAW
Professor Lindevaldsen
Text: Contemporary Family Law (Abrams)
Marriage, Family and Privacy in Contemporary America
Exams heavily graded on (1) articulating the rules (2) exceptions (3) who has the burden? and then (4) apply the rule to the facts. Use all facts.
33% of civil docket in VA is family law matters
Every family law case has public policy issues
“Nuclear” families constitute < ¼ of all American households.
dramatic growth in alternative family arrangements
nonfamily households – single adults living alone or w/ others not related by marriage
growing at twice the rate of “family” households
Why do we care about defining a family?
procreation
fosters the norm of society
normative (health & welfare)
if you assume that all laws have a normative function, then gov’t has some justification for being involved in family/marriage regulation
it would be chaotic if there were no laws regulating marriage
Bible says so
don’t use this argument in court
the way to convince people is to transform hearts
Constitutional Law premise:
EP premise = all laws discriminate, implement someone’s morality. But is it unconstitutionally discriminatory? Use three levels of scrutiny:
strict scrutiny – compelling governmental interest and narrowly tailored; presumed unconstitutional
intermediate scrutiny – important governmental interest and substantially related to an imp governmental interest
rational basis – presumption is it is valid/constitutional
Substantive due process has to do w/
expressly protected by USConst OR
so rooted in tradition and conscious of our people ranked as fundamental
IMPORTANT: There is no intermediate scrutiny in substantive due process.
The American Family Today
This chapter focuses on contours of family privacy
Coontz article
is procreation a good reason to marry?
1/3 of all children born are out of wedlock
Proponents of Change
+ ¼ of all US households now contain only 1 person.
Never before have so many people lived alone.
Reservations About Change
Family law is headed in one or more of a least four troubling directions:
equivalence b/t cohabitation and marriage
redefining marriage as a couple-centered bond (gender neutral)
disestablishment, or the separation of marriage and state
this approach denies the state’s legitimate and serious interest in marriage as our most important child-protecting social institution
why just two?
The Relationship B/t Families and the Law
Public Law
Moore [J1] v. City of East Cleveland, 431 U.S. 494 (1977)[1]
F: Moore is mother of Dale and deceased daughter. Daughter’s son is John. Dale, Dale, Jr., and John live with her. East Cleveland’s housing ordinance limited occupancy of a dwelling unit to members of a single family. Part of the ordinance was a strict definition of “family” which excluded Mrs. Moore who lived with her son and two grandsons, specifically the deceased daughter’s son.
I: Did the housing ordinance violate the Due Process Clause of the Fourteenth Amendment?
C: The four justices in the plurality held that the ordinance violated Moore’s rights as it constituted “intrusive regulation of the family” w/o accruing some tangible state interest.
Ct used rational basis test and substantive due process
Court warns re: due process, “If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them.
J. Stevens joined in the judgment and argued that
the ordinance was invalid because, by regulating who could live with Moore, it constituted a taking of property w/o just compensation.
The Evolution of the Right to Privacy
recap: cases to date cover fundamental right to privacy
Griswold v. Connecticut, 381 U.S. 479 (1965)[2]
F: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling to married persons for purposes of preventing conception.
I: Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?
A: State’s reasoning for contraceptive statute was marital fidelity.
H: Gov did not have right to invade marital privacy (implicit in USConst).
C: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy.
Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.
NOTES:
· Due process[J2]
o Was there a fundamental due process right to use contraceptives?
o penumbras [J3] are emanations [J4] from express constitutional provisions
· Within the penumbra, the case protects marital privacy
· “We deal w/ the right of privacy older than the Bill of Rights—older than our political parties, older than our school system.” What is that older right of privacy that is protected under Griswold?
o marital privacy
· Would the court have ruled differently if the contraception ban had been applied to all?
o No discrimination; EP v. DP
· J. Black’s dissent
o if it’s not in the rights, he does not recognize penumbra
o he does not believe it is the SC’s duty to change the constitution from time to time
Eisenstadt v. Baird, 405 U.S. 438 (1972)[3] o F: Wi
gia’s Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.
o I: Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?
o A:
o Ct embraced a narrow test for recognizing “fundamental rights” under the USConst: to qualify for heightened judicial protection, a claimed liberty must be “deeply rooted in the Nation’s history and tradition” or “implicit in the concept of ordered liberty’ such that ‘neither liberty nor justice would exist if it were sacrificed.’”
o Bowers applied that test specifically to uphold the constitutionality of a GA law criminalizing sodomy. The Ct’s determination that the Cost permitted states to criminalize sexual intimacy b/t same-sex couples posed obvious difficulty for those asserting a constitutional privacy right for other aspects of same-sex conduct, including a right to marriage.
o C:
o No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices.
o Justice White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are “implicit in the concept of ordered liberty” (Palko v. Connecticut, 1937) or when they are “deeply rooted in the Nation’s history and tradition” (Griswold v. Connecticut, 1965).
o The right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of “judge-made constitutional law” and send the Court down the road of illegitimacy.
o NOTE: In 2003 SC overruled Bowers in Lawrence v. Texas, striking down a TX law criminalizing same-sex sodomy as a violation of substantive due process.
[J1]incorporate diagram from p. 11 about “building on fundamental rights.
[J2]principle that the government must respect all of a person’s legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property
[J3]a space of partial illumination b/t the perfect shadow and all light; a shaded region, e.g., like in an eclipse. (3) A body of rights …in a civil constitution (definition in the current dictionaries, but not earlier ones.)
[J4]to come out from a source
