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Family Law
St. Johns University School of Law
Chiu, Elaine M.

FALL 2013
How much privacy should be accorded vs. how much room there is for state authority
o    Inter conflicts – state vs. whole family unit conflicts
o    Intra conflicts – individual members of family – what’s the role of the state; what room is there here for state authority (privacy)
  I.            Constitutional Right to Privacy
A.      Evolution of the Right
Inter Conflict Cases:
·         Meyer v. Nebraska (1923): DP challenge to state law prohibiting the teaching of any other language besides English for those younger than 8th grade
o    14A DP:
·         PDP: no jail unless there's hearing, etc.
·         SDP: right to teach was unduly infringed upon by state; right to parent/control upbringing of child — both in “liberty” from 14A – freedom from bodily restraint, contract with others, freedom of association
o    Where the right to direct upbringing comes from: “natural duty of parents” – inalienable, cannot be taken away; emphasizes that family predates the law/has higher value –> fundamental right (important for SDP claim)
o    Purpose of state law and whether it's justified: police powers – aimed at promoting general welfare/health/education of citizens
·         Was proper exercise – to make young citizens better through teaching American values, which would be hindered by learning other languages
·         State interest vs. liberty: no big emergency to allow this much infringement; statute as applied was arbitrary and without reasonable relation to any end within the competency of the state – statute wouldn’t accomplish its objective – only teaching English will not necessarily produce better citizens; infringement of the right does not achieve the state's purpose, making the law arbitrary
·         “Statute as applied” (vs. facial challenges to statutes): can challenge a statute as unconstitutional in two different ways – as applied to the clients or the facial challenge
§  Facial challenge – no matter who it's applied to/what form the citizens take, it's always unconstitutional  
§  Perry v. Hollingsworth – by erasing 9th Cir. Opinion, was confusion as to whether injunction was applied to the women or a facial injunction 
·         Pierce (1925): state law compelling public school attendance for kids 8-16; schools suing for property right and the parents suing on their liberty SDP claim
o    Child not “a mere creature of the state” – not only a creature of the state/young citizen; product of parent's upbringing – have job of nurturing and directing child's destiny – and a “high duty” – parent owes duty to child to prepare child for additional obligations – and the state enforces this duty
o    Child not regarded as individual with own rights- like property of the parent and state – not until abortion cases does this conception change
o    State's goal of its regulation against private schools vs. rights of school as business and parents'
·         To produce better civic American citizens through uniform public instruction – do we get better citizens through this goal –> no; an unreasonable interference in directing the upbringing – no reasonable relation to the purpose    
o    Meyer and Pierce first go at SDP that doesn't involve economy
o    Neither case mentions privacy, and are categorized as dicta – not essential to case holding (“mere creature,” etc.), but the fights were b/w the state and the schools, not the parents; language about rights of parents wasn't essential and could have been argued through economic SDP 
·         Griswold (1965): even with past cases being dicta, still use them to interpret them for precedent/authority
o    Griswold opened up clinic and distributed contraceptives to married couples for standing – all couples had serious health/mother endangerment issues and were given contraceptives–>arrested for being accomplices 
o    Any person who assists another in contraceptive or the use of contraceptives
o    With standing – had precedent, not just dicta
o    Sources of privacy:
o    SDP of 14A (Meyer and Pierce) – esp. Harlan
o    1A of free association
o    9A- the “catch-all” – esp. Goldberg
o    5A self-incrimination clause – if accused, cannot be forced to incriminate ourselves
o    3A and 4A –> Spatial zone of privacy – the actual spatial, physical zone of privacy (specific and physical)   
o    Case sets up “privacy right” and  weighs this new right of privacy against state interests
·         Deter pre-marital sex and promote sanctity of marriage – sex exclusively for marriage; wanted people in marriages to have more kids rather than have protected sex (immigration threat); promoting the nuclear family and this contraceptive was a threat in those ways
·         Court, rather than address these issues, look at whether or not the law was narrowly tailored to achieve the interests or imposing max destruction of this individual right – other ways the state could have approached: civil legislation that would regulate the manufacturing/sale of contraceptives (wouldn’t impose max destruction, narrowly tailored) – some vs. total criminalization; and regulating it at the location it's sold – not the private home (3A and 4A), less intrusive – spatial privacy
o    Touches on different types of privacy: 1A (and maybe 5A) (decisional, freely associating) and 3A/4A (spatial)
o    Who enjoys this right to privacy: married couples as a unit –> later, more broadly interpreted
o    SDP vs. state interest/assessment of its rationale under SS (fundamental right)      
·         Eisenstadt (1972):
o    Criminalized distribution by individuals and use of contraceptives to those unmarried; exempted married couples receiving contraceptives from registered physicians/pharmacists
o    D arrested for lecturing and giving out contraceptives
o    Argued this case not on SDP, but EP grounds of 14A and treating everybody equally under the laws – not exacting equality, but unfair discrimination; there are C fair differentiating laws
o    Identification of classification scheme or identification of individual right being differentiated  vs. assessment of rationale for classification scheme (assessed under RB, Int., or SS)
·         Classification scheme: married vs. unmarried (marital status)
·         Type of individual right: right to use contraceptives vs. no right
·         RB (not suspect classification – not immutable characteristic)
·         Classification implicating fundamental right would be SS – here, it fell short –> hesitation to recognize full import of Griswold/discomfort – probably since the classification is vanilla
·         Regardless, applying RB test, still fails under that standard
·         EP standards of review:
o    Race –> SS (closely related, narrowly tailored, CSI, no max destruction to right
o    Gender –> Int, (substantially related, important government interest)
o    Other classifications –> RB (rationally related, legit government purpose)
o    Here, unreasonable to try to deter pregnancy through mea

couple): “marital couple is…an association of two individuals each with separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Eisenstadt) –> and since woman has more of a stake in this situation, her privacy is more valued
·         Dissent:
o    State legit interest in promoting integrity of marital relationship and spousal notification
Cincinnati Women's Services v. Taft (2006):
·         Facial C attack, P's appeal district judgment upholding an abortion regulation that limits minors seeking a judicial bypass of the statutory parental-consent requirement to one petition per pregnancy (“single-petition”) –> court reversed
o    Amendments provided that juvenile courts didn’t have jurisdiction to rehear petition concerning same pregnancy once juvenile is granted or denied petition
·         Casey: requires courts to determine whether a large fraction of the women “for whom the law is a restriction” will be “deterred from procuring an abortion as surely as if the government outlawed abortion in all cases”
o    Here: women who are denied a bypass and who have changed circumstances such that if they were able to reapply for bypass, it would be granted; changed circumstances including increased maturity, greater knowledge about abortion, discovery of fetal anomalies
o    Substantial obstacle to getting abortion –> undue burden
C.      Getting Married and Constitutional Limits on State Regulation
Maynard v. Hill (1887):
·         Marriage is a contract, but not like others; the law steps in and holds the parties to various obligations and liabilities; an institution, in the maintenance of which the purity of the public is deeply interested since it's the foundation of family and society
·         Preformed status K, restricts freedom to chose, must be just one partner, and not free to chose the term; courts refusal to enforce explicit K's is because courts regard the institutions of marriage as already long established, rather than reluctance to intrude into private community
Loving v. Virginia (1967):
·         State statute preventing marriage b/w persons solely on race violates SDP and EP of 14A
·         VA: marriage should be left to state control under 10A; not violative of EP since it treats blacks and whites the same
·         Purpose of 14A: to eliminate all official state sources of invidious racial discrimination
·         Racial classifications are subject to SS, contrary to what state says
o    No legit/compelling state objective except racism –>proved through statute singling out whites only against other races (white supremacy)