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

fall 2014
a.        Modern Trends in Family Law
                                       i.      Increasing federalization of family law through Congressional acts
                                      ii.      Increasing constitutionalization of family law & values (inc. individualism)
                                    iii.      Increasing standardization of family law
b.        Conflicts in the Family Law
                                       i.      Family as a Private v. Public Institution
                                      ii.      Inter-conflicts: whole family unit v. the State
                                    iii.      Intra-conflicts: family v. family
c.        Evolution of the Right of Privacy
                                       i.      Courts turned to substantive due process to define familial right of privacy
                                      ii.      Determining Level of Scrutiny for Due Process Claims
1.        Identify the interest at stake
2.        Weight Interest against State interests
3.        If the interest is fundamental: strict scrutiny (narrowly tailored to compelling state interest)
4.        If the interest is not fundamental: rational basis review (rationally related to a legitimate government purpose)
d.        What is a family? Components of definition of family:
                                                               i.      Consists of biological and non-biological
1.        Biological: nuclear family (parents and children (children can also be acquired via adoption)), extended family (blood relation-> genetic connection b/w people; someone who marries into the family)
2.        Non-biological: equated with the state or the law; for ex, state law determines what a family is.
e.        Types of Conflict seen in family law (need to pay attn to what conflict is involved)
                                                               i.      Inter-conflict: Conflicts that take place b/w family on one side and state/law on the other side
1.        How much privacy should be accorded with families? VS. What is the role of the state? How much deference should there be give to state authority?
2.        This conflict is revolves around issue of whether family should be considered private or public institution regulated by the state.
                                                              ii.      Intra-conflict: Conflict within the family
1.        Ex: Conflict b/w parents & grandparents, b/w parent & child
2.        State is NOT a named party BUT state is brought in as an arbiter of the conflict
Constitutional Right to Privacy
Chronological Line of the Privacy Cases: Note that these cases deal with inter-conflict (family individuals v. state)
1.         Beginnings of Privacy Rights Jurisprudence: Parents’ Right to Determine Education of their Children
A.        “Natural duty” of parents to give children education suitable to their station in life (Meyer v. Nebraska)
                                                                                  i.            “natural”: coming from biology (something other than the law), often related to whether a not is a right is “fundamental”
                                                                                ii.            “duty”: two sided-language of family law (parents have duties/obligations to children but also rights/entitlements regarding those children )
B.        Meyer v. Nebraska: Law restricting what language may be taught to children was unconstitutional (Even if state purpose of making everyone speak English was legitimate, the law did so in a way that excessively interfered with rights of parents to control education of their children)
ü  SCt recognized that the right to marry was a liberty guaranteed by the DPC of 14th A in US Con.
·          Facts: P was tried and convicted for unlawfully teaching German to a 10-yr old child in a parochial school (school setting).
·          Statute: prohibited any person from teaching languages other than English, except to pupils who had successfully completed the 8th grade, and classified a violation as a misdemeanor, punishable by a fine and/or imprisonment.
o    This was a criminal statute.
·          Claim: Lawyer brings it as a claim/challenge that the law is violating the 14th A Due Process Clause; the law violates the parent’s rights.
o    Due Process Clause is found in the 14th A section 1. It states: “No state . . . shall deprive any person of life, liberty or property without due process of law.”
·          Ct’s standard: Whether the state’s interest is necessary or legitimate at the time.
·          Holding:
o    Ct first had to determine what due process means (define DP). The ct determined it to mean many things, including right to marry, establish a home and bring up children, right to engage in any of the common occupations of life.
o    Ct defines right to bring up children as the natural duty of the parent to give his children education suitable to their station in life.  In other words, parents have a natural duty (independent of law) to chose, direct, control the education of their children.
§   SCt gets the right to bring up children from natural duty.
§   Remember: Two sides of the parent/child relationship:
·          Parents have rights to their children
·          Parents have duties and obligations to their children
C.        Pierce v. Society of Sisters: state’s interest in standardizing what students were learning by requiring all students to attend public school was not legitimate; parent’s right to control education was liberty interest at stake
ü  Statute: Compulsory Education Act: Parent must send child b/w ages 8 & 16 to public school.This act was trying to get rid of private schools altogether.
ü  Holding: emphasizes parental right to educate children.  
·          State and parents involved in children’s interest. Double existence of children: creature of states & creatures of parents, who have rights, duties and obligations to them.
·          “The child is NOT the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
ü  Significance of Pierce:
                                                                                              i.            Grounding the right of parents in the upbringing of their children in the 14th A DPC. Parents getting substantive due process rights.
                                                                                            ii.            Privacy is NOT mentioned in either Meyers or Pierce.
                                                                                           iii.            Level of scrutiny: rational basis; state needs to have a legitimate state interest.
D.        Recognition of Right of Privacy: Griswold v. Connecticut
a.         Griswold v. Connecticut (381 U.S. 479 (1965)): SCt held that marriage is a “relationship lying within the zone of privacy created by several fundamental constitutional guarantees,” and therefore a CT state law forbidding the use of contraceptives to married couples was found to violate the constitutional  right to marital privacy.
b.         Law against using contraception or advising about contraception held to be unconstitutional > swept unnecessarily broadly and thereby invaded the area of protected freedoms.
c.         State asserted interest was in deterring illicit sex > but this law included married people as well
d.         Court suggests that CT could regulate their manufacture or sale of contraceptives, but forbidding use of contraceptives had maximum destructive impact upon marital relationship
e.         Court recognizes right of privacy in “penumbras” of amendments (1, 3, 4, 5, 9, 14)
                                                                                              i.            1st A: Right of Association
                                                                                            ii.            3rd A: prohibition of quartering soldiers in any house in time of peace without the consent of the owner
                                                                                           iii.            4th A: right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches & seizures
                                                                                           iv.            5th A: Self-Incrimination Clause enables the citizen to create a zone of privacy which gov may not force him to surrender to his detriment.
                                                                                             v.            9th A: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (catch-all for the rights not listed in 1st-8th A’s)
                                                                                           vi.            14th A: Substantive Due Process
f.          Ct describes this right as fundamental, NOT just a constitutional right. By labeling it as a fundamental right, need to apply strict scrutiny.
g.         State interest #1: Protecting public health. Ct rejects that state interest by questioning:If contraceptives are dangerous, then why are you allowing married people to take it and not unmarried people? Does this mean that the state does not care about married people at all? Thus, the law is NOT reasonably related to the state’s interest b/c why would the state protect health of unmarried couples and NOT married couples.
h.         State interest #2: prevent pre-marital sex. Ct rejects that state interest by questioning:                
                                                                                              i.            What about deterring the married person who is cheating on spouse.
                                                                                            ii.            Ct also states that people are NOT going to stop having sex. So, the result will be risky sex leading to unwanted pregnancies. This is ridiculous to punish women for being pregnant. “It would be plainly unreasonable to assume that Mass has prescribed pregnancy and the birth of an unwanted child as punishment for fornication.”
i.          Therefore, state interests are NOT reasonable.
j.          Dissent: argued that there was no enumerated right of privacy (law should be addressed through legislative process). Privacy is NOT mentioned in the US Con. This law is bad but does NOT have a constitutional problem.
       Significance of Griswold:
a.         Ct locates the right of privacy in the US Con
b.         Ct determines what level of scrutiny is appropriate—strict scrutiny
c.         Ct defines what is meant by privacy
d.         Ct defines who enjoys this right of privacy (married couples)
E.        Eisenstadt v. Baird (405 U.S. 438 (1972)): Ban on sale of contraceptives is unconstitutional even when it does not affect married persons—used strict scrutiny
1.         Facts: Baird deliberately went to this state university to give a lecture and gave contraceptives to an unmarried female.
2.         Issue: Why different treatment accorded to married and unmarried persons under Massachusetts General Law?
3.         Statute: provides a maximum 5 yr term of imprisonment for “whoever gives away any drug, medicine, instrument for the prevention of conception.
a.         This statute criminalized people who gave away contraceptives
b.         Married persons may obtain contraceptives to prevent pregnancy, BUT only from drs or druggists on prescription.
c.         Single persons could NOT obtain contraceptives from anyone to prevent pregnancy.
4.         Provision of US Con being challenged: EPC
a.         Equal Protection Clause of the 14th A states: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
                                                                                                                                        i.      What equal protection gets us is the right to have equal rules from govt if we are similarly situated people.
                                                                                                                                      ii.      Classification that state uses here: married and unmarried
1.         Scrutiny applied: rational basis
5.         Holding:
a.         Applied rational basis—unconstitutional! Ct could have considered this statute as depriving a fundamental right, which would have bumped the scrutiny to strict scrutiny. BUT Ct fails to recognize it as a fundamental right.
                                                                                                                                        i.      The reason for this dodging was that the notion of privacy coming from the US Con did not sit well with the people & Ct wanted to avoid talking about Griswold as much as possible.
b.         State interest #1: Protecting public health. Ct rejects that state interest by questioning:
                                                                                                                                        i.      If contraceptives are dangerous, then why are you allowing married people to take it and not unmarried people? Thus, the law is NOT reasonably related to the state’s interest b/c why would the state protect health of unmarried couples and NOT married couples.
c.         State interest #2: prevent pre-marital sex. Ct rejects that state interest by questioning:   
                                                                                                                                        i.      What about deterring the married person who is cheating on spouse.
                                                                                                                                      ii.      Ct also states that people are NOT going to stop having sex. So, the result will be risky sex leading to unwanted pregnancies. Cant punish for unwanted pregnancies
d.         Therefore, state interests are NOT reasonable.
6.         Eisenstadt and privacy:
a.         Who has right to privacy? What is privacy?
1.         Famous statement from case: “the right of individual, married or single, to be free from unwarranted governmental intrusion so fundamentally affecting a person as the decision whether to bear or beget a child.”
2.         Ct says that privacy right is extended from Griswold (only belonged to married couple), but the right belongs to an individual.
F.          Right to privacy in adult relations: Lawrence v. Texas (539 U.S. 558 (2003)):
1.         Facts: Officers were dispatched to a private residence in response to a reported weapons disturbance. The officers observed Lawrence and Garner (a man) engaged in a sexual act. They were arrested and convicted. This is a criminal statute against same sex sodomy. Recognizes right to privacy in the home but more importantly it is the right of the person to engage in intimate conduct
2.         Con provision being challenged: Due Process
3.         Holding:
a.         This case overturns Bowers v. Hardwick 478 U.S. 186 (1986).
b.         Right to privacy in adult consensual relations (Lawrence v. Texas- scope is limited- same sex sodomy cannot be a crime; Court was concerned with giving rights to all kinds of private sex/all kinds of homosexual behavior/public behavior)
c.         This case overturns Bowers v. Hardwick (478 U.S. 186 (1986)). This SCt states that there are 3 things that the Bowers Ct got wrong. This is in the identification of the interest at stake in the DP analysis.
                                                                                                                                  i.            Bowers Ct focused too much on the historical aspect of homosexuality. The old statutes that

access to all FDA-approved contraceptives without cost sharing HOWEVER they did not use the least restrictive means—could have had govt pay for the four contrceptives (like they did for the non-profit organizations)à this was a violation and they now have to re-write the regulations to include for-profit organizations
H.        Due Process Analysis
                                                                      i.      Identification of the interest at stake
1.         Ct articulates what the right is about
2.         Ct looks at where in the US Con the right came from (location)
3.         Ct looks at the origins of this freedom
4.         Ct characterizes the right as either fundamental or not
a.         For fundamental rights, apply strict scrutiny
                                                                                                                                        i.      For strict scrutiny, state interest has to be compelling. The law has to be narrowly tailored and closely related to meet that compelling state interest.
b.         For non-fundamental rights, apply rational basis.
                                                                                                                                        i.      For rational basis, state interest has to be legitimate govt purpose. The law (means) has to be reasonably related to meet those legitimate ends.
                                                                    ii.      Weighing of interest at stake against state interest
I.            Equal Protection Analysis
1.         If the classification is race or the right is a fundamental right, then apply strict scrutiny.
a.         For strict scrutiny, state interest has to be compelling. The law has to be narrowly tailored to meet that compelling state interest.
2.         If the classification is gender, then apply intermediate scrutiny—must be substantially related or important govt objective
3.         If the classification fits in other classifications, then apply rational basis.
a.         For rational basis, state interest has to be legitimate. The law (means) has to be reasonably related to meet those legitimate ends.
J.            Summary:
                                                                      i.      Parents à(Right of parents to control children’s education; this is a SDP right)
                                                                    ii.      Married couplesà(Right to use contraceptives; protection of marital bedroom)
                                                                   iii.      Individuals à(Eisenstadt) (Right to make decisions about child-bearing)
                                                                   iv.      Heterosexual AND Homosexual Individuals à(Lawrence) (Right to make decisions about consensual sexual intimacy & relationships)
Getting Married & Constitutional Limits on State Regulation
A.        Introduction
a.         Why state regulates who can get married
                                                                i.      State has an interest and needs to make its interests known.
                                                              ii.      Extent of state’s regulation is limited by US Constitution.
                                                             iii.      Entry of marriage is a formation of a K.
b.         Protecting minors is an important state interest, see this state interest in the following laws dealing with who can get married:
                                                                i.      Bigamy statutes
                                                              ii.      Minimum age requirement statutes
                                                             iii.      Statutory rape laws (criminal)
1.         Remember: Sexual intimacy is important to marriage
B.        State cannot restrict which races marry (Loving v. Virginia)
a.         Facts: Two residents of VA, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the DC. Shortly after their marriage, the Lovings returned to VA to live. Mildred did not know that interracial marriage was illegal in VA, but Richard did. Five weeks after their marriage, they were awakened early in the morning as three law officers acting on an anonymous tip opened the unlocked door of their home. The Sheriff demanded to know what the 2 of them were doing & Richard pointed to the DC marriage certificate on their bedroom wall. The Sheriff replied that the marriage certificate was no good in VA (no lex loci law in VA). He arrested them.
¾        Statute #1: Caucasian CANNOT marry other races; this is a civil statuteà“[A]bsolute prohibition of a ‘white person’ marrying other than another ‘white person.’” There was a penalty of 1 to 5 yrs in jail.
¾        Statute #2: Criminal statute stating that u could not leave the state with the purpose of getting marry and then returning back to the state that does not allow such marriage as a married couple
b.         What constitutional grounds did the Loving’s lawyers sue on? EPC and DPC of the 14th A.
c.         Holding on EPC claim: EPC analysis is about classification. The classification here is race. VA argued that it was not just about race b/c all people had to pay attention to this statute, including white people. Ct says that the application only affected white people and less so two minorities trying to get married. Ct dismisses VA’s claim that it is not a racial classification. Ct applies strict scrutiny.
d.         Holding on DPC claim: The interest at stake of the individual is the right to marry, which the Ct defines as the “vital personal rights essential to the orderly pursuit of happiness by free men”. The cases stated are Maynard v. Hill and Skinner v. State of Oklahoma BUT NOT Griswold v. CT. By the Ct defining it as vital, the Ct labeled it as a fundamental right. Thus, the Ct applies strict scrutiny. VA gives as its compelling state interest that it was to preserve racial integrity. The Ct saw this as white supremacy and rejects the state interest as NOT even being legitimate.
¾        Unclear whether the court was relying on Equal Protection or Due Process (the opinion discusses both)
¾        EP: Court recognized that there was a classification at work; universal or even application across all faces does change the fact that a racial classification is being applied
¾        DP: Marriage as fundamental