I. Changing Concepts of Marriage and Family
A. Function versus Form of the Traditional Family
i. Ladue v. Horn: unmarried families not considered “family”
1. Facts: city ordinance said certain zones are “one-family residential” and the city wanted couples that were not married to stop violating it bc not family
2. HELD: 1) ordinance was rationally related to its expressed purpose of promoting health, safety, morals, and general welfare of city and violated no provision of the Federal Constitution, and (2) city did not act arbitrarily in enacting its ordinance, which defined “family” as those related by blood, marriage, or adoption, and, thus, did not violate the Missouri Constitution.
ii. Braschi: same sex is a family
1. Facts: two men living together. One dies and landlord wants to evict bc not surviving spouse
2. HELD: Gay man not excluded as a matter of law from seeking protection from eviction under statute
3. RATIONALE: shared everything and lived together for years. The term family in the rent law should not be rigidly constricted.
4. RULE: family for the purpose of the rent control law is those individuals who reside in home and have normal family x teristics
iii. Opposite sex unmarried families
1. Very rarely can get civil unions
2. On occasion when lived together and then married couples allowed to =ly divide items collected during non married phase upon divorce
iv. Catholic Charities of Sacremento: religion and family law
1. FACTS: Church-affiliated employer brought action against state and state agencies for declaratory and injunctive relief, challenging provisions of Women’s Contraception Equity Act (WCEA), which required employers who provided group health care and disability insurance prescription coverage for their employees to include coverage for prescription contraceptives, as unconstitutional under federal and state establishment and free exercise clause
2. HELD: the WCEA does not interfere with the employer’s autonomy and Free Exercise or Establishment Clauses
3. RATIONALE: P does not qualify as a religious corp bc employs non Catholics and purpose is not the inclusion of religious values
B. Making Your Own Deal
i. The Marvin Trilogy
1. Main theme: express and implied agreements bt partners are permissible so long as the consideration for the agreement does not include a provision of sexual services
2. Courts are divided about permitting cohabitants the same legal rights as traditional family members
3. FACTS: Marvin agreed to share with live in girl all property and earnings (he was married to someone else during this time) . Plaintiff now wants her money bc they broke up
4. HELD: pay up. This was a contractual arrangement and as long as you did not consider sexual favors in contemplation it is not void for pp. Moreover, the statute of frauds does not apply to this bc this is not a marital contract. Contracting between two non married people working out a domestic relationship is not void for PP.
5. DICTUM: courts may utilize broad equitable powers to grant relief to non-marital powers where necessary. Additional equitable remedies
6. Marvin II: P suffered no damage here and benefited economically. TC gives here 104,000 as equitable relief or economic rehabilitation. TC finds no express agreement. Implied.
7. Marvin III: Ct of appeals reverses- this award is not based upon traditional notions of equity such as unjust enrichment- d was not unjustly enriched and did nothing wrong. The award creates new substantive rights under the guise of doing equity.
1. Marvin II: misunderstood and misapplied the SC call to equity- this isn’t about fairness but about actual equitable principles handed down from the English Courts
2. WITHOUT EXPRESS AGREEMENT: not much hope for any non marital agreement.
ii. Minority View Hewitt v. Hewitt
1. Some courts hold the traditional rule and refuse to recognize the rights of non-marital parties to enter into contracts with each other about property rights.
2. FACTS: couple holds out as husband and wife and has children and agree to share property. Couple breaks up and she wants her property.
3. HELD: contract between unmarried cohabitants are unenforceable as contrary to PP.
4. RATIONALE: negative impact outweighs the rights of the parties
iii. Watts. V. Watts
1. HELD: in the absence of an express agreement implied (in fact and in law) contracts bt cohabitants are enforceable to protect the fulfillment of the parties’ reasonable expectations.
2. Courts may inquire into the conduct of the parties to fashion relief through a constructive trust, resulting trust or quantum meruit.
iv. Anastasi v. Anastasi: note JX of cases- the Traditional Rule
1. Under the domestic realtions exception to federal jx: fed cts refused to hear palimony cases bc their home is in the state courts. (ex. Diversity and amount in controversy.)
2. FACTS: palimony case and is removed to fed ct based upon diversity. TC motion: is this contract or domestic relations? If contract can go to fed ct.
3. HELD: Because these cases require judicial investigation into the support needs of parties they implicate a state interest.
v. Cali Code and the new JX
1. Cali provides an exception to traditional rule
2. Akenbrandt: limits federal exception to issuance of divorce, alimony, custody decrees so feds can hear more cases.
C. Marriage the Religious Heritage
D. Marriage the State’s interest
i. UMDA
1. PERSONAL relationship bt man and woman and license needed
2. Four factors for the just distribution of property
1. Contribution of each spouse including homemaking
2. Value of the property set to each spouse
3. Duration of the marriage
4. Economic circumstances of each spouse at the time of dissolution- desire to award home to who has the kids
3. marital property does include that acquired by the parties subsequent to the marriage but not property acquired by gift, inheritance, exchanged for separate property, or subject to a valid agreement by the parties
4. equitable means the most equal division
ii. Maynard v. Hill
1. Husband and wife become one person under the doctrine of coventure- this is a new relationship
inal foam
2. Rights should be extended to married and unmarried alike. Violative of the EPC- did not pass rational basis test. Irrational
3. Court avoids question of prohibited contraception in general
4. Note: penalty for handing out contraception 5 years but 90 days for fornicating. Does not make sense
vi. Roe v. Wade
1. Affirmatively went to court and said statute prohibiting abortion was uncons. Vague and denies right to privacy
2. Can get abortion in the first trimester but not second where there is viability.
1. Life of mother is exception
3. The third trimester protect the fetus and the mother
vii. Carhart: applied attack could in some cases be unconst
1. Holdings: The Supreme Court, Justice Kennedy, held that:
1. (1)Act’s prohibition on “intact” dilation and evacuation (D & E) procedure is not void for vagueness on its face;
2. (2) most reasonable reading of terms of Act is that it does not sweep too broadly to include prototypical D & Es;
3. (3) Act does not on its face impose unconstitutional substantial obstacle on women seeking late-term, but previability, abortions;
4. (4) Act furthered legitimate congressional purposes; and
5. (5) absence of health exception did not render Act facially unconstitutional.
i. But could in some cases as applied
2. Ginsberg dissent:Nebraska partial birth statute violated const. per Roe
1. Found that statute regulating PBA not constitutional bc did not provide exception for the health of the mother- although had life of mom ex
2. State has interest in protecting fetal life post viability
viii. Lawrence v. Texas
1. Liberty interest and privacy right to the marital bedroom
2. Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adult males who had engaged in consensual act of sodomy in privacy of home, as impinging on their exercise of liberty interests protected by the Due Process Clause of the Fourteenth Amendment; overruling Bowers
3. Scalia: scathing dissent: opinion overruled Bowers and the court never really addresses the issue raised in Bowers: is there a fundamental right to homosexuality. This is like prohibiting incest, beastiality etc. Thinks rational basis was applied and things like bigamy could be found OK? Also speaks of the use of international law comparisons and other cultures- says this has no place in the US courtroom.
