Family Law
Freedman
Fall 2015
1. Family Law
a. Moore v. City of East Cleveland:
i. Issue: Whether a housing ordinance that limits the occupancy of a dwelling unit to members of a single family, and narrowly defines the term “family” to include only a few categories of related individuals, violates the Due Process Clause of the Fourteenth Amendment.
1. Rule: The right of family members to live together is fundamental and protected by the constitution. Even though the CEC is trying to protect certain things, its still not fundamental. Sharing a household with aunts, uncles ect has a strong historical root and is worthy of constitutional recognition.
2. Right of Privacy
a. Griswold v. Connecticut: Does the Bill of Rights contain an implied right of privacy that permits the use of contraceptives by married persons?
i. Rule: The right of privacy to protect the intimate relations of married couples is implied in the Bill of Rights. The marital relationship is in the zone of privacy.
ii. The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
b. Eisenstadt v. Baird: May a state statute permit the giving of contraceptives to married persons and not to unmarried persons without violating the Equal Protection Clause of the Fourteenth Amendment?
i. Rule: cannot grant married and unmarried persons unequal access to contraception. The consequences resulting from a denial of contraception to unmarried persons creates a suspect class that violates the Equal Protection Clause. The decision of the court of appeals is affirmed.
c. Lawrence v. Texas: Whether a Texas statue making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the due process and equal protection clauses of the 14th amendment?
i. Rule: The liberty protected by substantive due process encompasses the right of consenting adults to engage in homosexual activity.
d. Liberty/Privacy Rights Analysis aka Substantive Due Process Analysis.
i. Is constitutionally protected liberty at stake? [identify and define the liberty interest involved]
ii. Does the challenged law infringe the identified liberty interest?
iii. Is the government interest a permissible one? If yes to 1,2, and 3
iv. How important is the government interest?
v. How strong is the means-ends relationship?
e.
3. Obligations to the Parties Children
a. Model Rule 1.2(a): generally a lawyer shall abide by clients decisions concerning the objectives of representation. Lawyers in divorce proceeding owe a duty to their clients, the parents and not to the children.
b. Section 310: appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation.
4. The Right to Marry
a. Loving v. Virginia: May a state enact a statute that prevents marriages between persons solely on the basis of racial classification without violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment? No
i. Rule: The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by freeman. The 14th amendment requires that freedom of choice to marry not be restricted by racial classification.
ii. Scrutiny? For equal protection, it must be held to the most rigid scrutiny, there must be a necessary accomplishment of some permissible state objective, independent of racial discrimination, here this is no purpose independent of racial discrimination which violates the central meaning of equal protection.
b. Equal Protection:
i. Focus: Classifications and differential treatment
ii. Base: Deferential Review
iii. Heightented scrutiny triggered when: suspect/ protected classification or classification discriminates among persons exercising a fundamental liberty.
c. Substantive Due Process
i. Focus: Deprivation of protected liberty
ii. Base: Deferntial Review
iii. Heightened scrutiny triggered when: the precise liberty invaded by the state is fundamental.
d. Classic Equal Protection Analysis
i. Is a protected class targeted?
ii. Does the challenged law discriminate against members of a protected class?
iii. What is the weight of the government interest served? Do they have a strong compelling interest?
iv. Evaluate the strength of the means-end relationship.
e. Zablocki v. Redhail: Constitutionality of a Wisconsin statue, which provides that members of a certain class of Wisconsin residents may not marry, within the state or elsewhere, without first obtaining a court order granting permission to marry.
i. Rule: Wh
amily is lesser, and would suffer material costs of being raised by unmarried parents.
4. Marriage is a keystone of our social order.
6. Polygamy: Marrying Multiple Wives
a. State v. Holm: Utah’s bigamy statue: a person is guilty of bigamy when knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person” H knew he had a wife and still wanted to marry.
i. Rationale: The plain construction of marry is supported by the legislative history and purpose of the bigamy statue. The well-documented legislative history of this states attempt to prevent the formation of polygamous unions supports our conclusion that the bigamy statue was intended to criminalize both attempts to form duplicative marital relationships that are not legally recognized. An unlicensed solemnized marriage can serve as a subsequent marriage that violates the bigamy statue.
ii. Marital relationships served as the building blocks of society, the state must be able to assert some level of control over the relationships to ensure smooth operations and to discourage things that are harmful. The state has declared polygamous relationships as harmful.
7. Incestious Marriage:
a. Smith v. State: Whether Tennessee’s criminal incest statue is unconstitutional under the protection provided by the Constitution of the State of Tennessee.
i. Rule: The asserted right to participate in adult consensual incest is not a fundamental liberty interest protected by the Tennessee constitution.
ii. Conclude: To conclude there exists a fundamental right to engage in an incestuous relationship, the courts would contradict centuries long tradition. Use a rational basis test to examine the statues constitutional validity. A legislative enfacement will be deemed valid if it bears a real and substantial relationship to the public’s health, safety, morals, or general welfare.
