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Family Law
Rutgers University, Newark School of Law
Perry, Twila L.

I. What is a Family?
A. Adult-Child Relationships
1. American legal system has its own narrative about what a family looks like.
a. Two parents (of the opposite sex) care for their own children.
b. This rule of the “exclusive” family is a central problem in the United States.
1. Children may only have two parents. Those parents have full control and access – there is no in between, to provision for other family members or “part-time” caretakers.
2. Often, the nuclear family cannot provide complete care by itself.
c. Argument made that courts should recognize other care giving relationships.
d. Defined by expectations of society.
1. Related by blood
2. Economic interdependent
3. Social and emotional support
4. People living together and sharing responsibilities
B. Adult Relationships
1. Conjugal
a. Baker v. State (VT)
1. Three same-sex couples who lived together in committed relationships, applied for, and were denied marriage licenses.
2. Issue is whether Vermont can deny same-sex couples the benefits and protects afforded to opposite-sex couples.
(a) No. After this case, the legislature enacted a civil union statue for same-sex couples.
b. In recent decade there are: lower levels of childbearing, higher divorce rates, older age of marriage, rising nonmarital childbearing, and increased levels of cohabitation.
c. Cohabitation as effected by social class.
1. People with less education are more likely to experience cohabitation.
2. Cohabitors tend to have lower incomes and higher poverty rates than married couples.
3. Good economic prospects enhance the likelihood of marriage among cohabitating couples.
d. Braschi v. Stahl Associates (NY 1989)
1. Two men lived together for 10 years in an apartment under Blanchard’s name. Braschi was his power of attorney, beneficiary, and they shared banking accounts, and credits cards. Upon his death, it was argued that Braschi was not a family member and should be evicted.
2. Ruled that within the context of rent control and eviction regulations, “family” is interpreted to include people who reside in households having all the normal familial characteristics.
(a) Purpose of rent control is to protect renters from eviction and the term “family” must be interpreted to fulfill that purpose.
(b) Different than intestacy or adoption regulations.
3. Rule. The term family should not be rigidly restricted to those people who have formalized their relationship by obtaining a marriage certificate or an adoption order.
e. Views of Family.
1. Article in the book about various types of relationships advocates for registered partnership. The registration would enable default rules (intestacy) to apply to more people’s intent.
C. Groups
1. Village of Belle Terre v. Boraas
a. Long Island community was restricted to single-family dwellings of no more than two unrelated persons. Six students from a college leased a house together and were cited for violated the ordinance.
b. The court ruled that zoning ordinances do not have to serve any purpose other than to create quiet zones for families or any other purpose that does not violate equal protection.
c. Equal protection is not violated if the ordinance is: reasonable, not arbitrary, and bears a rational relationship to a legitimate state objective.
d. The court ruled in favor of the town, claiming that since it allowed two unmarried people to live together, it was not discriminatory against unmarried persons.
e. Dissent. The classification violates rights of privacy and association. There has been no showing of the necessity to protect compelling and substantial governmental interest.
2. Policy. Despite the ruling, the trend (both judicial and legislative) is of greater tolerance of nontraditional family life.
3. Penobscot Area Housing Development v. City of Brewer (1981)
a. The city had a single-family zoning ordinance which required a domestic relationship based on birth, marriage, or other domestic bonds. A group tried to open a home for 6-8 retarded individuals, living there for about 1 ½ years with rotating supervision. The city denied, claiming that they were not a “family.”
b. While a “domestic bond” does not require blood or marriage, it requires more continuity. The court had to main problems with the home.
1. Lack of permanent authority figure, a central idea to the concept of family.
2. Temporary stay of residents is unlike the concept of family.
4. Borough of Glassboro v. Valloriosi
a. Town passed an ordinance limiting occupancy of certain dwellings to “families,” defined as a single housekeeping unit. Defendant leased a dwelling to 10 college students who shared all housekeeping duties. The town sought to evict them.
b. Family defined as “single non-profit housekeeping unit, living together as a stable and permanent living unit, being a traditional family unit or the functional equivalent thereof.”
c. Rule. The statute limiting occupancy is valid because it promotes an important governmental function by restricting activity harmful to the community.
d. Even though the ordinance is valid, it does not apply to the students because they demonstrated that they are a functional equivalent of a family.
5. Oneida Colony Article
a. Small group, almost entirely housed under one roof, in a building meant to encourage togetherness and consisting of many communal rooms.
b. System of “cultural enclosure,” referring to others as “The World.”
c. Economic communism.
d. “Mutual criticism” handled infractions; there were no law or law-enforcing officers.
e. Every adult considered to be married to every other adult of the opposite sex.
1. Had to go through a committee to request sex so that you could refuse.
2. Theory that the glow of love should last; all should enjoy sex. (not just men).
D. Lega

re. A hard burden for plaintiff’s to overcome.
2. Griswold v. Connecticut (due process) (see quote)
a. Directors of Planned Parenthood were convicted of disseminating information about condoms.
b. Court held that laws restricting the use or dissemination of contraceptives by or to married couples violates the constitutional right to privacy. (right found in penumbra of 9th Amendment).
c. Cannot regulate use of contraceptives as opposed to their manufacture. The means implemented are unnecessarily broad.
3. Eisenstadt v. Baird (equal protection)
a. Defendant convicted of distributing contraceptives to unmarried people. He claims that the law is unconstitutional for treating married and unmarried people differently.
b. Court found the statute unconstitutional.
1. If purpose is to promote health, clearly it is too extreme.
2. It all cannot be valid as a deterrent to fornication, which is already a crime.
c. Note. Classifications based on marriage do not have to pass strict scrutiny. However, statutes restricting marriage are held to a high standard of scrutiny. In this case, only the rational basis standard was used.
d. Perry thinks that a state could enforce a fornication statute because there is a legitimate government purpose in regulating unmarried sex, regulating children being born to single parents and promoting traditional family values.
4. Lawrence v. Texas
a. Two men were arrested and charged for having deviant sexual intercourse in their private home.
b. Court held that the Equal Protection Clause of the 14th Amendment protects the freedom to engage in private conduct among both heterosexual and homosexual partners.
1. Compare to Bowers v. Hardwick, in which a Georgia court upheld a law against sodomy. Technically, that law prohibited the act among all people, not just homosexuals. The court phrases it as due process rather than equal protection to avoid this technicality.
2. Just because something is traditionally immoral does not mean that it should be prohibited.
3. O’Connor concurrence. Bowers should not be overturned but this statute is unconstitutional.
4. Scalia dissent. Sexual behavior can and should be regulated because of moral disapproval.
c. Note. Private behavior should be protected, but the Court doesn’t declare it a fundamental right.
5. Roe v. Wade