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

Family Law Outline—Chiu Fall 2015
A.   Introduction
1.      Two types of Family Law Conflicts:
                                i.      Inter-familial: Conflicts between the family and the state
a.      A tension between how much family should be private institutions vs. family as a public institution
                              ii.      Intra-familial: Conflicts between member within a family
a.      The state is more of a third party in the battle between family members
B.   The Evolution of the Privacy Right
1.      Substantive Due Process: The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary. Certain types of state limits on human conduct have been held to so unreasonably interfere with important human rights that they amount to an unconstitutional denial of liberty.
                                i.      Standard of Review: A government action that infringes upon a fundamental right is subject to strict scrutiny. If the interest infringed upon is not fundamental, then there need be only a rational basis review for the regulation.
Ø  Exam Tip: If, on a question, a fundamental right is being infringed upon for all persons, the issue is likely one of substantive due process. If the right is being denied to only a particular class of persons, then equal protection is in play.
                              ii.      What is the appropriate Level of Scrutiny? Differing levels of scrutiny will be applied depending on the type of discrimination. There is a presumption of validity scale with Strict Scrutiny at the top and Rational Basis Review at the bottom. The notion is that it’s unfair to penalize a person for characteristics that the person did not choose and cannot change. The ability of the group to protect itself through the political process and history of discrimination are aspects that go into determining the level of scrutiny used.
a.      Strict Scrutiny: Discrimination based on race or national origin, also generally discrimination against aliens. A law is upheld if it is proved necessary to achieve a compelling government purpose. The government must show that it cannot achieve its objective through any less discriminatory alternative.
b.      Intermediate Scrutiny: Discrimination based on gender and discrimination against non-marital children. A law is upheld if it is substantially related to an important government purpose. The Court need not find the government’s purpose “compelling” but it must characterize the objective as “important.” The means used need not be necessary, but must have a “substantial relationship” to the end being sought. The government again has the burden of proof in this case.
c.       Rational Basis Review: Minimum level of scrutiny that all laws challenged under equal protection must meet. A law will be upheld if it is rationally related to a legitimate government purpose. The government’s objective need not be compelling or important, but just something that the government legitimately may do. The means chosen only need be a rational way to accomplish the end. The challenger has the burden of proof, enormously deferential to the government and only rarely have laws been declared unconstitutional for failing to meet this level of review.
                            iii.      Does the Government Action Meet the Level of Scrutiny? In evaluating the constitutionality of a law, the Court evaluates both the law’s ends and its means. In evaluating this relationship the Supreme Court often uses the degree to which a law is underinclusive and/or overinclusive. A law can be both, and the fact that a law is either does not mean it is sure to be invalidated, virtually all laws are one or both to some degree. These are used to evaluate the fit between the government’s means and its ends. If strict scrutiny is used, a relatively close fit is required; the government will have to show that the means is necessary to achieve the goal. Under intermediate, a closer fit, less underinclusiveness or overinclusiveness will be required than under the rational basis test.
a.      Underinclusiveness: A law is underinclusive if it does not apply to individuals who are similar to those to whom the law applies. An example being a law that excludes those under 16 years old from having a driver’s license because some younger drivers undoubtedly have the physical ability and the emotional maturity to be effective drivers.
b.      Overinclusiveness: A law is overinclusive if it applies to those who need not be included in order for the government to achieve its purpose. In other words the law unnecessarily applies to a group of people. An example being the government’s decision to evacuate and intern all Japanese Americans on the West Coast during WWII was radically overinclusive.
                            iv.      Incorporation: Most of the substantive guarantees of the Bill of Rights have been incorporated into the 14th A due process clause and thus made applicable to the states. Practically all of the individual rights conferred by the Constitution upon individuals protect ONLY against government action, they do NOT protect acts by private individuals. Incorporation happened slowly after Slaughterhouse ruled that the Bill of Rights was not encompassed by the 14th A P&I clause.
                              v.      Fundamental Rights:  The Supreme Court has held that some liberties are so important they are deemed to be “fundamental rights” and that generally the government cannot infringe upon them unless strict scrutiny is met. These liberties include: (1) the right to vote, (2) the right to travel, and (3) the right to privacy. A lot of these rights are covered by both the DPC & EPC, along with travel being covered also by the 14thA P&I.
§  Relatively little depends on whether the Court uses the DPC or EPC as the basis for protecting a fundamental right, under either strict scrutiny is generally used. The major difference between the two is how the constitutional arguments are phrased, if a right is safeguarded under,
·         The DPC:
o   The issue is whether the government’s interference is justified by a sufficient purpose (law denies the right to everyone).
·         The EPC:
o   The issue is whether the government’s discrimination as to who can exercise the right is justified by a significant purpose (law denies a right to some, while allowing it to others).
a.      Right to Privacy: The government should not infringe on private things such as marriage, contraception, sexual preferences, abortion, family relations, and right to die.
1.      Contraception: The interest in using birth control is “fundamental” whether a person is married or single, the State can’t impair this interest without satisfying strict scrutiny.
§  Griswold v. Connecticut (1965): Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a CT law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception. Court ruled that although the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. *This was brought under the 9thA, but is still relevant here because it identified privacy as a fundamental right. *INTER
§  Carey v. Population Services Inter

mating that the Bowers court too narrowly conceived the liberty interest at stake. Articulated the liberty interest as being able to engage in private sexual conduct free of the threat of criminal sanction by the state. Court didn’t find it to be a fundamental right, so if the morals basis didn’t pass RBR, no such legislation could. *INTER
b.      Family Relationships: Whenever state interferes with a person’s decision about how to live his family life and raise his children, fundamental rights might be violated. HOWEVER, there is no fundamental right to be a grandparent!
1.      Right to Live Together: Relatives have a fundamental right to live together
§  Moore v. East Cleveland (1977): Supreme Court invalidated a highly restrictive zoning ordinance limiting single-dwelling housing occupancy to a narrowly defined number of family groupings focused on the nuclear family.  The statute prohibited a grandmother from living w/ her son & two grandchildren b/c the grandchildren were cousins rather than brothers. Supreme Court saw this as an infringement on the family relationship b/c extended family status is a tradition deeply embedded in American society & cannot be lightly impaired by state. *INTER
2.      Upbringing & Education: Parent’s right to direct upbringing and education of their child is fundamental
§  Meyer v. Nebraska (1923): P was convicted for teaching a child German under a Nebraska statute that outlawed the teaching of foreign languages to students that had not yet completed the eighth grade. Court ruled that the statute infringed on the liberty rights of the parents under the 14th A to educate their children the way that they want to. The statute failed RBR because it is arbitrary and is without reasonable relation to any end within the competency of the state. *INTER
§  Pierce v. Society of Sisters (1925): Private schools obtained restraining orders prohibiting enforcement of Oregon’s Compulsory Education Act which required all parents and guardians to send their children between 8-16 years old to a public school. Court ruled that the statute unreasonably interfered with the liberty of parents to direct the upbringing and education of their children. The state has the power to regulate all schools, but parents and guardians have the right and duty to chose the appropriate preparation for their children. The statute failed RBR. *INTER
c.       Marriage: A state can only interfere with marriage if the interference passes strict scrutiny, fundamental right.
§  Loving v. Virginia (1966): VA enacted laws making interracial marriage a felony. Court held that it was unconstitutional via the EPC, they also held that the Virginia law violated the Due Process Clause of the Fourteenth Amendment. “Under our Constitution,” wrote Chief Warren, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”
§  Zablocki v. Redhail (1977): State law disallowing remarriage if in debts in child support (incentive to pay child support) but struck down under EP – puts a fine on the next marriage & state cannot economically encumber one’s choice to enter into marriage.