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

Family Law- Professor Chui St. John’s School of Law Fall 2011
I.             What is Family
A. 3 Variables
-biological,/ blood, and legal relationships.
-functionally step-father appears on your family tree
a. biological
b. legal relationships (married)
c. functional family (step-father) or (“like family to me”)
Family law is so important b/c it is one of the most important topics in this country at the moment. Topics of: gay marriage, abortion, single parenting (welfare/poverty), immigration
        B. Some Legal Trends in family Law
Increased federalization of law through Congressional acts.
-The federal government is sort of taking over the topic of family law. In the US there is no uniform rule on gay marriage, it differs state by state.
Increasing constitutionalization of family law and values (increasing individualism)
-a lot of family law cases are constitutional at the same thing. To be constitutional, will lead to some uniformity.
Increasing standardization of family law
–          There is an increase in having a uniform rule in relation to family law. Want to do this to prevent certain injustices and harm to children.
         C. 2 Types of Conflicts We Look At
a. inter conflicts- disputes where a whole family unit v. the state
– tension between how much family should be private institutions v. family as a public institution
1. How much privacy should be accorded to families?
2. What is the role of the state? How much room should there be for state authority?
b. intra conflicts
– family v. family
-individual members of family disputing things between other members of the family. (i.e. divorce)
D. Inter-Conflict Cases
A. Privacy cases (chronological order)
Meyer v. Nebraska- in the state it was illegal to teach children of a certain age modern foreign languages. Meyer taught German in a private school and was convicted.  Meyer brings lawsuit based on Due process Clause of the 14th amendment. He says that his right to liberty is violated, his liberty to convey knowledge (substantive due process is violated, this means you are entitled to a self-protected freedom here).
Court focused on the parent’s rights and they said it’s been the right forever of parents to instruct their kids how they want to. Parents have a choice where to send their kids to school and they sent their kids to a private school b/c they want their children to learn certain things, in this instance German language. They said this right has been around a long time, it is a natural duty. Natural= adj. coming from biology, important in identifying your right as fundamental.
-This court does not really talk about “fundamental rights” b/c it is early case.
-The court said there has to be a relationship between the regulation and one’s purpose, it must be reasonable.
-Court said this was not a legitimate purpose of the state, and this law would interfere with the rights of the parents, and it infringes upon the rights of the parents w/o doing much for the state’s interest.
1.      First identify the interest at stake
2.      Weighing interest of the state
           Fundamental Rights- Strict Scrutiny
                                      “Closely related”
                                      “Narrowly tailored”
                                      “Compelling state interest”
Non-Fundamental Right= Rational Basis
                                              “Rationally related”
                                             “Legitimate gov’t purpose”
Pierce v. Society of Sisters- tried to mandate that everyone go to public school, Oregon. The liberty interest at stake here, is the same in Meyer case. They (state) was doing this because they wanted to take control of what the children were learning (in history, science), they wanted to standardize the children. (afraid of foreign stuff blahh)
Court: “A child is a dual creature, once belonging to the parents, once to the state.”-Parens Patriae. They said that parents and the state have responsibilities to the children, and they have to be shared, and the state has too much power here. The court also sees no reason to standardize kids, and said these are not legitimate goals and they inflict upon the rights of parents.
NOTES: these two cases are the beginnings of democracy amongst the population. The both cases, describe children retro, they don’t mention the children
Griswold v. Connecticut- law stated that it was a crime to use contraception. Doctor and Director were advising married couples and giving them advice about contraception, and some of the centers supplied them with contraceptives. They were grated standing to raise the issues about due process; they raised the 14th amendment violation in Meyers and Pierce.
Justice Douglas Majority Opinion: Looks to Meyers and Pierce. Then he looks to the amendments. 1st amendment- the right of association. 3rd amendment- privacy within the home, about a special privacy that protects your physical house. He says in your “marital bedroom’ there is privacy. 4th amendment- right to be secure in your person, and house against search and seizures. 9th amendment- self-explanatory. 14th amendment- same.
Dissent: Said that they are just making it up, they said that it was not prohibited by a specific constitutional provision. Justice Stewart says that he hates this law as well, but he said we could try to go to the state legislature to try to get rid of the law. (they tried to do this, conn. But they failed. Was like one of the last states that had prohibitions on contraceptives).
*If it is an enumerated right, then it is much more likely to be treated like a fundamental right.
*Here, contraceptives are not an enumerated right, but people believe that the right of privacy in this opinion was seen as a fundamental right and it was viewed with strict scrutiny.
-The state interest here was deterring illicit sex, the court focused on the maximum destruction of the marital relation and they said this right was huge so who cares about the state interest.
-This court tells us that they are interested in spacial privacy.
There is also decisional privacy. And informational privacy. And bodily privacy.
GRISWOLD IS MORE CONCERNED WITH SPACIAL PRIVACY!!!!! That is why they said the state should just make it hard to get contrceptives.
Griswold’s Significance
1.      Where is the right of privacy in the Constitution?
2.      What level of scrutiny is appropriate?
3.      What is meant by privacy?
4.      Who enjoys the privacy? –in this case only right for married people
Eisenstadt v. Baird: goes to a college town he lectures about contraceptives, and gives it out (vaginal foam) to the college students. The statute forbids the distribution and sale of contraceptives to non-married people (they allowed married people to receive). Plaintiff’s focused their protest on the Equal Protection Clause- protects you from inequality and categorization of people and treating them differently.
Equal protection analysis

that “procreative goal” could still have occurred even if he didn’t get married.
è Seems as if this “test” is not quite rational basis or strict scrutiny, it falls in between.
è A rigorous level of scrutiny!
Califano . Jobst (note 12)- Because their marriage rights changed they got less child benefits. The court said this was not a direct obstacle in getting married. Direct is an absolute provision, here this is just a consequence of marriage! Also, this was not a huge consequence ($20 less). The court applied the least serious scrutiny.
Zabloski and Equal protection Have to Ask 2 Questions For Anything Asking Right To Get Married
a.     Right to Marry + Direct and Substantial Interference-> strict scrutiny
b.     Right to Marry + Reasonable Regulation-> Mild scrutiny
C.  Turner v. Safley (1987)- The Missouri division of corrections had regulations permitting inmates to marry only with the permission of the superintendent of the prison, only when there are compelling reasons to do so. Generally only a pregnancy or illegitimate child was considered compelling. Plaintiff brought a class action suit.
Issue:  Should a different rule be applied to a prison forum?
Court: Prisoners retain their constitutional rights that are not consistent with their status as a prisoner.
D.   State v. Holm- The state law says that bigamy/polygamy is illegal (if you have two or more marriages). D just had a religious marriage and not a state one. And then later on, he got married legally, and then the state got involved. The statute could reach those religious ceremonies, b/c the court said the religious ceremony was just like a real legal marriage, and it was under the surface of the reach of the state laws. (in NY this would be called cohabitation). D, says this statute is unconstitutional b/c it infringes on religion.
1st Decide whether this statute applies to everyone or specific group?: Yes it applies to everyone! The test would be whether there is a legitimate state interest.
State Interest here: They want to regulate marriage. The state has an interest in protecting some victims here, incest, statutory rape, etc. It is true that in a lot of these polygamists communities they wait until they are legal to marry them, but they are also having sex before that age! And in a lot of these communities, they kick them out of the communities b/c they are in competition for the women in these communities.  There is also a concern for welfare laws, b/c the state is concerned that there will be more children going into welfare b/c of the ability to support all those kids and all these marriages that are not real marriages; and it is also a concern about abuse of governmental resources. (And a single mom with kids could get more money, and this is abuse b/c you do have a spouse that is supporting you and resources, so this is fraud).