Family Law
Prof. Freedman
Casebook: Contemporary Family Law. Abrams, Cahn, Ross & Meyer (2006)
Chapter 1 – Marriage, Family and Privacy in Contemporary America
· Section 1: The American Family Today
o Hot topics:
§ Variety of family forms in US
§ Factors of bias in family law: class, race, gender, sexual orientation, cultural dynamics.
§ Interdisciplinary collaboration.
o Goals of family law (PFACE)
§ Protective – Protecting someone from harm. Usually children; sometimes adults being protected from their own harmful decisions.
§ Facilitative (Accommodative) – The law as a facilitator of transactions; a resource for private ordering when people are not in conflict. Allows people to marry, divorce, adopt and shape property relations.
§ Arbitrative – The law helps people resolve disputes.
§ Channeling – The law tries to influence behavior/conduct, to get a particular result. Perhaps the channeling is to protect a group.
§ Expressive – Advocates the political and moral values that should be expressed in the law. What people are doing is immoral; the law is serving the values badly.
o Cere, Law and Marriage Crisis
§ Equivalence between marriage & cohabitation
§ Marriage is becoming a couple-centered bond
§ Traditional, conjugal-centered view
· Child-centric view of marriage
· Sexual fidelity, joint parenthood, mutual caretaking
§ Contemporary relational bond-centered view
· Union should satisfy the needs of the adults in it
· Children when needed and desired
· State less involved in the relationship
· Section 2: The Relationship Between Families and the Law
o Modalities of Constitutional Law
§ Text of the Constitution
§ Structural argument
§ Precedent
§ Prudential Arguments
§ Ethos
o Public Law
§ By deciding what groups constitute a family, the law has a significant impact on the benefits of different family structures.
§ Moore v. City of East Cleveland (1977)
· Facts: Grandmother living with son, two grandsons (who were cousins, not brothers). A Cleveland city ordinance defined family strictly. D was convicted of violating the housing ordinance for single-family dwellings.
· Issue: Did the ordinance violate the Due Process Clause (14th)?
· Holding: The constitutional right to privacy extends further than the nuclear family, to families more broadly defined. Definition was arbitrary. SDP analysis.
o (1) Freedom from purposeless restraints and arbitrary impositions
o (2) Certain interests require particularly careful scrutiny of the state needs asserted to justify their restriction.
o Due Process is a guarantee of fair procedures, and freedom of personal choice in family life.
o Higher scrutiny when there is a fundamental value at stake. SDP deals with oppression through the law.
o The Evolution of the Right to Privacy
§ Origins of the right to privacy in he family are traced to 1923 case Meyer v. Nebraska, and 1927 case Pierce v. Society of the Sisters. Cases cited the SDP liberty interest in the care custody and control of children.
§ Griswold v. Connecticut (1965)
· Facts: Case about Planned Parenthood lecture about methods of preventing conception. This was against a Connecticut statute that said could not prevent conception. People @ the lecture were arrested. Standing by means of criminal conviction.
· Issue: Is statute a violation of SDP that unreasonably restricts privacy within the marital relationship?
· Holding: State may not contract the spectrum of available knowledge. Privacy is protected from marital intrusion. Law has maximum destructive effect on the r’ship. Violation of SDP when the means sweep unnecessarily broadly and thereby invade the area of protected freedoms.
o “Appropriate limits on SDP come from not drawing arbitrary lines but rather from careful respect for the teachings of history and solid recognition of the basic values that underlie our society.”
§ Eisenstadt v. Baird (1972)
· Facts: D arrested for displaying contraceptive articles in the course of a lecture & for giving a young woman some vaginal foam. Statute said only a physician could prescribe contraception, and even then, only to married couples. Appeal to overturn conviction.
· Issue: Is the statute unconstitutional under EP?
· Holding: Statute violates the rights of a single person under the EP clause of the 14th. The dispositive question was whether there was some rational ground for difference between married and unmarried persons that explains the disparate treatment. Court said no such ground existed.
o The statute was codified under “crimes against chastity, morality, decency and good order.” IT was clearly not a health measure, as contraception only banned for unmarried persons.
o Right to privacy goes to decision whether or not to bear a child.
o Providing dissimilar treatment for married and unmarried persons who are similarly situated violates the EP clause.
§ Notes & Questions
· Eistenstadt stands for: (1) right to privacy is not just for marriage, and (2) right to sexual privacy attaches to the individual, not the couple.
e married in Wash DC. Moved to Virginia, and were indicted for violating state’s ban on interracial marriages. Sentenced to 1 year suspended sentence if left Va. For 25 years. They moved & then filed suit.
· Issue: Does the law banning interracial marriages violate EP and DP clauses?
· Holding: Violated both DP & EP. EP demands strict scrutiny for racial classifications. Only justification for the law is race discrimination. This violates EP clause. Marriage is a basic civil right of man, which cannot be deprived without due process of law. This violated DP.
§ Strict scrutiny – suspect classifications – race, national origin, alienage. Presumption of invalidity unless gov’t can show discrimination is narrowly tailored to achieve a “compelling” gov’t interest.
§ Intermediate scrutiny – quasi-suspect classifications – gender & legitimacy. Gov’t may overcome presumption of invalidity by showing the law is “substantially related” to the achievement of an “important” gov’t interest.
§ “Aggressive” SDP – where the gov’t acts to deprive a person of an aspect of liberty deemed “fundamental.” (Griswold, Loving, Troxel, Moore
§ Zablocki v. Redhail (1978)
· Issue: Constitutionality (EP) of a statute that cuts off marriage rights for people with noncustodial children to whom they owe support, without first obtaining a court order granting permission to do so. Cannot grant permission without proof of compliance with support obligation and must ensure that child will not become public charge.
· Holding: “Critical examination” of the state interests is required b/c classification interferes with fundamental right to marry.
· Same-Sex Marriage?
o Intro:
§ S.Ct. embraced a narrow test for recognizing fundamental rights under the Constitution. To qualify for heightened judicial protection, the claimed liberties must be “deeply rooted in this nation’s history and tradition” or “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.” (Palko v. Connecticut, 1937).
