FAMILY LAW
WHAT IS A FAMILY?
Lay definition
o Support system, interdependence in terms of money, sometimes psychologically
o People who live together, have dinner together, and engage in certain activities together
Legal definition
o People who are related by blood, marriage, or adoption
Village of Belle Terre v. Boraas
o Group of SUNY students rented a house together
o Village had statute saying only single families could live there
§ “Family” here defined as people related by blood, marriage, adoption, or two people living or cooking together
§ Here, there were six students, so they were in violation
o Students here argue that the statute interfered with their constitutional right to travel, emigrate to a state, and have privacy
o Supreme Court holds that those aren’t fundamental rights, and Rational Basis review was used
o Marshall dissents, invoking 14th amendment equal protection rights, and says people shouldn’t be penalized based on their status
Penobscot Area Housing Development Corp. v. City of Brewer
o City denies retarded people’s cert. of occupancy because they aren’t related
o Statute did not find them to be a family
o Court upholds the law, saying that this was not a cohesive unit, not a permanent group because supervisors didn’t live there all the time, and there was no res. Authority figure
Boro of Glassboro v. Vallorosi
o 10 unrelated college students rent a house together
o Court found that the students WERE a family because they met the generic standard for family and had a permanent plan for a stable living unit
Braschi v. Stahl Associates
o Gay couple lived together, and one of them died
o Partner wanted to stay in apartment and landlord tried to say he was not entitled to stay because he wasn’t family
o Court held that partner (braschi) was likely to succeed on the merits b/c they were life partners
o Court looked at various factors in order to determine if they were family—they had joint bank acct, power of attorney, and will, and they held themselves out to the world as a couple
o Key here: court looks at factors and not a strict definition of family
MARRIAGE
WHAT IS MARRIAGE?
Status vs. Contract (Henry Maine)
o Status is conferred on an individual
§ Sometimes you have to join a certain group to achieve a status
o Contract is something you choose to enter into
Some people say that you can’t have freedom to make a K unless you have power; thus the freedom to make a K is affected by your status in society
BISHOP: COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE
o Marriage is entered into by K: Marriage K vs. Commercial K
§ Must have legal capacity to make marriage K
§ Can’t be married to someone else, have to be right age
§ Consideration- i.e. “I do”
§ Can be voided on the basis of fraud and mistake
§ Both have all of the above
§ The K is performed once you get married… any breach would be during the engagement—breach of the agreement to marry
§ Actual marriage is performance of the marriage
What happens once the K is performed?
o It becomes a status
o What does the status mean?
§ The law tells you how/when you can get out of a marriage
§ The state has to intervene
§ It diminishes your freedom of K
State Interests in being involved in Marital/Family Relationships:
Police power
Patrie power (protecting young children & mentally incapacitated)
Maynard v. Hill
o Marriage has always been subject to the control of the legislature
o Unlike other Ks, can’t be modified, restricted, or enlarged, or entirely released upon the consent of the parties
o The duties and obligations rest upon the LAW of the state, not on K
o What do lay people think of as marriage?
§ economic and emotional interdependence for life
§ commitment for life
§ sexual exclusivity, monogamy
§ there are certain legal benefits and legal commitments
Griswold v. CT
Struck down statute prohibiting giving contraceptives to married people because it violated due process
o Focus here: what the court says about marriage
o Case makes it clear that the marriage relationship is within a zone of privacy (cannot have cops searching people’s bedrooms for signs of contraceptives)
o Marriage is a coming together for better or worse
àRight of Privacy in the home is a “fundamental aspect of liberty” (but not absolute)
àStarts the chain of cases
and criminalized
o Court here talked about this as Due Process, as opposed to EP, b/c they wanted to talk about dignity of these people and their private relationships
o How broad a principle of sexual privacy does this case embrace?
§ Is it just about same sex couples and respect for their lifestyles and choices?
o O’Connor’s concurrence
§ Should have been decided under Equal Protection
§ Have to protect tradition of marriage
o Scalia’s dissent
§ Not a denial of EP, because men and women can both get in trouble for the same thing
These cases really set the framework for sexual privacy for unmarried people and same sex relationships and for privacy for married people.
Important Cases which reflect how Courts will protect the right to marriage:
· Loving v. Virginia (1967)–Liberty in Due Process
o Interracial couple, got married in D.C.
o went back to VA, VA wasn’t having it
o she was 17 and black, he was 24 and white
o he was supposed to go to jail, but got it stayed if they left the state
o so they did, but then they wanted to come back to VA
o they did and got arrested
o ct says this should be a rational basis test, said VA is
o court talks also about marriage being a fundamental right
o this then brings in due process and strict scrutiny
o some people said this case was mostly about race, but others said this was about the right to marry
àAny law that has the effect of absolutely denying the right of marriage is subject to strict scrutiny
Zablocki v. Redhail
Court described right to marry as “of fundamental importance for all individuals” and as “part of the fundamental ‘right of privacy’ implicit in the 14th Amendment’s Due Process Clause”
Laws may not “interfere directly and substantially with the right to marry”
