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


Constitutional Right to Privacy
1) Levels of Scrutiny
a) Strict Scrutiny
i) Test
(1) State action is narrowly tailored to serve a compelling state interest
ii) Application
(1) Due process claims
(a) Fundamental rights
(i) Privacy
1. Right to privacy belongs to all individuals
a. Not just a married couple
2. Four different types
a. Spatial privacy
b. Decisional privacy
c. Bodily privacy – free form unlawful seizure of person
d. Informational privacy
e. Whether info about you should be broadcast
3. Right to decide how children are educated
a. Laws that were unconstitutional for violating parents rights to educate kids
i. Law prohibiting teaching of foreign language (Meyers)
ii. Law prohibiting kids from going to private school (Pierce v. Society of Sisters)
4. Right to use contraceptives
a. Violation of privacy of the marital bedroom to arrest people for giving info about contraceptives (Griswold)
5. Right to make decisions about child making
6. Right to make decisions about consensual sexual and intimate relationships
a. Invalid law that prohibits sodomy between homosexuals (Lawrence v. Texas)
(2) Equal Protection claims
(a) Suspect classifications
(i) Including
1. Race
b) Intermediate Scrutiny
i) Test
(1) State action is closely related to an important state interest
ii) Application
(1) Due process
(2) Equal Protection
(a) Semi-suspect classifications
(i) Including
1. Gender
c) Rational Basis
i) Test
(1) State action is reasonably related to a legitimate state interest
ii) Application
(1) Due process
(a) Non-fundamental rights
(i) Including
(2) Equal protection
(a) Non-suspect classifications
(i) Including
1. Married v. non-married people
a. Not rational to allow married people to have contraceptives and deny non marrieds (Eisenstadt v. Baird)
b. But rational to give married people tax breaks and not single people

Getting Married
1) Pre-Marital Controversies
a) Marriage as a contract
i) Elements of contract
(1) Offer – will you marry me
(2) Acceptance – YES!
(3) Consideration – the engagement ring
ii) But different
(1) Involves external parties
(a) Need state permission and witnesses
(b) Most people don’t know the rights associated with marriage
(i) Get married for love
(c) Lifetime contract
(2) No claim for breach of contract
(a) Most states have abolished the claim for breach of promise to marry
(i) States used to allow it but use became abusive
1. W bought a ring and then H paid for it. They lived together but never got married. W sues for breach. (Rivkin v. Postal)
a. State allowed the cause of action if W could show
b. Written evidence of the promise to marry
c. Objective evidence that they were getting married
i. Engagement announcement, prenup, wedding plans
2. W showed none – only had engagement ring
a. Not enough
3. If she was successful, would only be able to get expectation or reliance damages
(b) Some people have tried to bring claims for intentional infliction of emotional distress or promissory estoppel
(c) States limit the suits b/c want people to really thank about their decision prior to entering into the marriage
(i) Don’t want to punish people for having a change of heart
iii) NY Law
(1) No breach of contract claim is allowed for breach of promise to marry
b) Gifts in Contemplation of Marriage
i) Engagement rings are conditional gifts
(1) Conditioned on getting married
(a) When marriage occurs, title transfers to the donee
(2) If marriage does not occur, then donor is entitled to the ring back
(a) If the ring was stolen or sold, then donor is entitled to the purchase price of the ring
(b) Approaches
(i) Fault
1. Man gets ring back
a. If there was mutual fault that the marriage didn’t occur
b. If it was woman’s fault that it didn’t occur
2. Woman keeps the ring
a. If it was H’s fault that the marriage did not occur
3. Rejected
a. Don’t want to be airing dirty laundry in the courts
(ii) No Fault
1. Donor gets the ring back
2. Adopt this approach b/c
a. Both parties often contribute to the ring today
b. Women sometimes buy their own ring
c. Consistent with no fault divorce system
d. Hard for court to determine who is at fault
e. Engagement period is to determine if you really want to get married so don’t want to encourage couple to get married just to keep the ring even though they really don’t want to be married
(3) What if engagement gift is not a ring?
(a) Watch?
(i) Harder to show that it was solely in contemplation of marriage and conditioned on marriage
1. Engagement rings are called engagement rings
2. Other uses for a watch
(ii) Would need to show intent that the gift w

al law that bans all bigamy so not to infringe on religious freedom
(b) H had lots of kids with different women and had them all living on a campus together. H would marry one, then get divorced and marry another but still continue to live with all of the wives. Law considered it bigamy if you were married and cohabitating with another woman not your wife. H said it was part of his religion. (State v. Green)
(i) Law is valid
1. Not a complete ban on marriage
a. Still allowed to marry who he wants, it just can only be one woman
(ii) Law is facially neutral
1. Punishes all polygamy
a. Not just religious polygamy
(iii)Apply rationale basis
1. Strong state interests
a. Protection of children
i. Lots of wives were underage
b. Prevent marriage fraud
i. Becomes fraud on the state b/c married couples have lots of state benefits that singles don’t
c. Regulation of marriage
i. Lots of obligations come with marriage and state wants to make sure that marriages survive
ii. Strong belief that monogamy is the only lasing marital structure
(2) Incest
(a) Not allowed to marry someone who is closely related to you
(i) State concern about the health of resulting children
(3) Age Restrictions
(a) Laws to help protect children
(i) Many states require people to be a certain age before they can legally get married – usually 17 or 18
(ii) Statutory rape laws
1. Person is strictly liable for having sex with someone under a certain age
(b) Case Analysis: M, 22, and W, 13, had sex and W got pregnant. M and W then wanted to get married. In KS, allowed to get married at the age of 12 but need parental consent. Both sets of parents consented. Stat rape law makes it a crime to have sex with someone under the age of 16. State charges M with stat rape. (Koso story)
(i) Both parents consented to the marriage b/c they thought it was better for them to be married and pregnant than not