FAMILY LAW OUTLINE
Professor Mutcherson
Spring 2015
Chapter 1 – Marriage, Family, and Privacy in Contemporary America
what is a family:
· a group of individuals living under one roof and usually under one head (household)
· a group of persons of common ancestry (clan)
· a people or group of peoples regarded as deriving from a common stock (race)
· the basic unit in society traditionally consisting of two parents rearing their children; any of various social units differing from, but regarded as equivalent to the traditional family
nuclear family = husband, wife, and children
A. Defining the Family
Moore v. City of East Cleveland – uncle and nephew could not live together
· freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment
· there is a private realm of family life which the state cannot enter
· appropriate standard of review – when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interest advanced and the extent to which they are served by the challenged regulation — strict scrutiny/high standard
B. The Evolution of the Right to Privacy
Griswold v. Connecticut – gave advice to married people about contraception
· specific guarantees in the Bill of Rights create zones of privacy; the amendments as a whole allude to a broad right of privacy, but no language in the Constitution specifically states such a right (9th Amendment shows that fundamental rights exist that are not expressly enumerated)
· marriage is sacred and protected; the marital home and bedroom are free from state interference; married people can obtain and use contraception
Eisenstadt v. Baird – statute prevented a person from giving away instruments to prevent contraception unless he was a registered physician giving contraception to a marriage couple
· not a fundamental rights case, but an equal rights case (married v. single persons)
· when there is no fundamental right or suspect classification, rational basis review
· goal was to prevent premarital sex, but the ban on access to birth control has a marginal relationship to preventing pre-marital sex
· broad right of privacy – contraception equality among married/single people; rights of married people are rights of individuals; each married person has separate rights
· the 1st Amendment can be used to argued that people are free to speak and/or lecture about contraceptives (State cannot require people doing so to be licensed)
Chapter 3 – Entering Marriage
A. The Right to Marry
Loving v. Virginia – law said white people needed to marry white people only
· equal protection analysis; racial/suspect classifications are subject to strict scrutiny
· there is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification
· marriage is a fundamental right and to deny this fundamental right on so unsupportable a basis as the racial classification embodied in these statutes is surely to deprive all the State’s citizens of liberty without due process of law
Equal Protection-
· focuses on classifications and differential treatment
· begins with a differential rational basis analysis
· heightened scrutiny triggered if there is a suspect classification or the classification discriminates among persons in connection with exercise of a fundamental liberty
Substantive Due Process-
· focuses on the deprivation of liberty
· begins with a deferential rational basis analysis
· heightened review triggered when the claimants show that the precise liberty taken by the state is fundamental
Zablocki v. Redhail – may not marry unless child support is paid
· the standard of review implicated for review of statutes that proscribe the right to marry is heightened scrutiny because the right to marry is fundamental
· when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests
· NOTE — reasonable regulations (age, incest, etc.) do not require heightened scrutiny
· here, the state interests (counseling and collection) can be pursued by other means that do not infringe on a fundamental right
B. Same Sex Marriage
Lawrence v. Texas – it was a crime for persons of the same sex to engage in sexual intimacies
· Bowers = a right is fundamental if it is deeply rooted in this Nation’s history and tradition OR is implicit in the concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed
· argued that sodomy is not part of this Nation’s history/tradition; but the issues in this case deal with a liberty interest
· homosexual relationships encompass more than simply the right to have sex, and this statute criminalizes all homosexuals (places them at a disadvantage)
· people are entitled to respect for their private lives and the State cannot demean their existence/control their destiny by making their private sexual conduct a crime; the right to liberty under the Due Process Clause gives people the full right to engage in sexual conduct without intervention of the government
· moral disapproval of a group is not a legitimate governmental interest
Equal Protection and Levels of Scrutiny-
(1) rational basis – disparate treatment must stem from a legitimate governmental objective that is rationally related to the classification
(2) intermediate scrutiny – quasi-suspect classes; disparate treatment is allowed only if it is substantially related to an important governmental interest
(3) strict scrutiny – suspect class; disparate treatment must be narrowly tailored to achieve a compelling state interest
Equal Protection Scrutiny and Burdens of Proof-
· rational basis – challenger to show there’s no possible facts supporting rationality
· rational basis plus – there must be some evidence to support rationality
· intermediate scrutiny – quasi suspect classes; government must prove there is a substantial
oted in history/tradition and there is no fundamental right to engage in an incestuous relationship; the right to privacy does not warrant the sweeping conclusion that all intimate/personal decisions are so protected
· prohibition of incest is aimed at protecting family and children (moral concerns)
F. Minimum Age at Marriage
GENERALLY-
· most jurisdictions follow a graduated approach to defining the minimum age for marriage, setting the minimum age at 18 years, while allowing minors to marry with parental or judicial consent
· the Equal Protection Clause permits states to discriminate on the basis of age so long as the state has rational reasons for the lines it draws
· the Second Circuit has held that the right of minors to marry has not been viewed as a fundamental right deserving strict scrutiny
G. Consent to Marriage
In Re Estate of Santolino – marriage may be annulled after one party dies
· one getting married must understand what he or she is doing/the consequences
· each party must have the mental capacity to consent and any expression of consent must be voluntary and free from duress or fraud
· factors relating to consent to marriage: (a) inability to give consent; (b) lack of mutual assent; (c) duress; (d) fraud as to the essential of the marriage
o fraud as to the essential of marriage exists where on spouse omits to mention or misrepresents an issue so material that it goes to the very essence of the marriage relationship constituting grounds for annulment
· impotency makes a marriage voidable at the election of the party to the marriage who did not know of the other’s condition at the time of the marriage
GENERALLY-
· void marriage — a marriage is void even without an annulment if it offends very strong public policies; the union has no legal effect/no formal dissolution is required; examples – bigamous and incestuous marriages
· voidable marriage — a marriage is considered legally valid unless and until a party goes to court to have it annulled
H. Marriage Formalities
Persad v. Balram – parties lacked marriage license but had a religious ceremony
· the lack of a marriage license did not render their marriage void because the laws of the state in which the parties lived (NY) proscribed that a marriage may be solemnized by a clergyman or minister of any religion
· there is a strong presumption in favor of a marriage license (some jurisdictions require strict compliance with licensing requirements to avoid uncertainty)
