Family Law
DeBose
Fall 2011
1) Chapter 1 – Marriage, Family and Privacy in Contemporary America
a) Compilation of standards
b) No uniformity in family law
c) Multiple sources – statute, constitutional, common law
d) Due Process Clause
i) Is there a suspect classification (race, national origin, ethnicity)
(1) Then strict scrutiny
ii) Strict Scrutiny – Highest level of scrutiny
(1) Classification presumed invalid. The burden is on the government to show both 1) a compelling state interest, and 2) that the classification is narrowly tailored to serve the end. – the undoing of past racial injustice is a compelling state interest (de jure)
iii) Intermediate Scrutiny
(1) Must show important statement
(a) Show important interest
(2) Classification presumed invalid. The burden is on the government to show both 1) and actual important purpose and 2) the classification is substantially related to serve the end.
iv) Rational Basis Scrutiny
(1) Classification is presumed valid
(a) If not fundamental, government has legitimate interest
(b) What it has done is rationally related to serve that interest – court will defer to government if reasonable – action and means of the government must be rationally related to serve the legitimate interest
e) Earliest Roots of the Right to Privacy
i) 40 years prior to Griswald & Eisenstadt, the Court expressed some willingness to recognize the right to privacy within a family
ii) Meyers v. Nebraska (Reynolds 1923)- Teacher taught German language to children in violation of a NE statute. Teacher sues, and the court finds a family right to raise their children/teach their children in a way they choose, within the 14th amendment, thus the statute was unconstitutional.
iii) Pierce v. Society of Sisters- state says “everyone has to go to public schools” Court says no-children are not mere creatures of the state, the parents have the right/privacy right to educate their children as they please under the liberty of the 14th Amendment.
iv) Thus, while the Origins and Parameters of this Family Privacy Right are unclear, they were substantially broadened in Griswald & Eisenstadt to marriage & individuals.
f) Evolution of the Right to Privacy
i) Griswold v. Connecticut (Douglas):
(1) Planned lawsuit with sympathetic Ps. (Poe v. Ulman was rejected for no injury/un-ripeness) Only deals with a married person’s right to contraception.
(2) Douglas finds the privacy zone in the “penumbras” of other amendments- 3rd Amendment- privacy right found in the protection of the home from housing troops. 4th search and seizure privacy in personal space/house/individual. Brandeis-right to be left alone. 5th- right against self-incrimination-zone of privacy not to be asked about private thoughts/privacy of own thoughts. 1st-right to associate- if the 1st protects political association, then it must protect the more intimate association of marriage. 9th the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.
(3) Rule: A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. Connecticut Supreme Court reversed. The Supreme Court invalidated the law on the grounds that it violated the “right to marital privacy”.
(4) Rule: The is a marital right to privacy to discuss contraception.
(5) Hamilton opposed this 9th amendment because he said that the bill of rights was altogether unnecessary, b/c the fed government doesn’t have any powers not given to the fed by the constitution. Shouldn’t have to enumerate rights held by the people. Marital privacy has to be one of these rights because it always has been.
g) 14th Due Process
i) Eisenstadt v. Baird- (7 person opinion- Brennan)-
(1) Mass statute says that only physician or pharmacist can give contraceptives and then only to married people. Court says that these statutes distinction between married and unmarried violates the DP clause of 14th Uses rational basis (b/c not a constitutionally protected class) and statute fails even this lenient test. Rationale:
(2) Married people can use contraception for adultery purposes
(3) Rule: A Massachusetts law criminalizing the use of contraceptives by unmarried couples violated the right to equal protection. Judgment of the Court of Appeals for the First Circuit affirmed. This is the case that established the right of unmarried people to possess contraception on the same basis as married couples and, by implication, the right of unmarried couples to engage in potentially nonprocreative sexual intercourse
(4) Rule: There is a right to privacy for unmarried couples to discuss contraception.
(5) No rational reason to assume that no contraception will deter pre-marital sex, and pregnancy is a ridiculous punishment.
(6) Thus in Eisenstadt, Brennan extends the privacy right of Griswald to the individual outside of the marital relationship. The individuals choice to use contraception now trumps the marital agreement.
h) Public Laws – Extended Families
i) Moore v City of East Cleveland-
(1) Housing ordinance like many throughout the country, limits occupancy of a dwelling unit to member of a single family, but the ordinance defined family as only a few categories of related individuals.
(2) Appellant lived with her two grandsons, who were cousins. She received notice that one was an illegal occupant and directing her to comply with the ordinance- when she failed to remove him from her home, she was charged with a crime. She claimed the ordinance was unconstitutional- she was sentenced to 5 days in jail, and a $25 fine.
(3) Court applies a DP analysis of personal choice of marriage and family life is one fo the liberties protect by the DP- private realms of families the states can’t enter
(4) State Interest- avoiding undue financial burdens on the school system, preventing overcrowding, minimizing traffic and parking congestion.
(5) Rule: An ordinance that defined nuclear family and restricted housing because of it deprived appellant of her liberty in violation of the Due Process Clause of the Fourteenth Amendment.
(6) Court uses rational relation test – is the action by the government rationally related to serve a legitimate interest?
(7) Court says state interests are not good enough- whether or not such a household is established because of personal tragedy, the choice of relatives in this degree of kinship to live together may not lightly be denied by the State. The Constitution prevents East Cleveland from standardizing its children and adults by forcing all to live in certain narrowly defined family patters.
(8) Powell plurality stresses the historical importance of the extended family.
2) Chapter 3 – Entering Marriage
a) Substantive Requirements for Entry into Marriage
i) All states have some marriage license laws
ii) Marriage Requirements
(1) Consent
(2) Be a certain minimum age
(3) Not married to someone else
(4) No close familial relationship
iii) Formal Marriage Requirements
(1) Obtain a Marriage License
(2) Participate in a civil or religious ceremony
iv) Some states required physical exam or blood test
v) Waiting period – generally between 3 and 5 days
(1) Pregnancy may waive
vi) Must be married in some ceremony
vii) Void marriage
(1) Cannot correct a void marriage
(2) Void from beginning
(3) Third party can protest
(4) No need for judicial determination
(5) Can be ignored by anyone
(a) Example- so insane that you cannot consent
viii) Voidable marriage – only parties can void it
(1) Failure to obtain a license
(2) Obtained license in wrong location
(3) If person that married you was not able to marry you, but you did not know, voidable, not void
(4) Third party cannot attack
(5) Exists until it is annulled
(6) Maybe some property split
(a) Examples – impotent at marriage, 16 or 17 w/o consent of parent
(7) Proxy Marriage
(a) Not normal
(b) Majority of states – it is an exception, not the norm
ix) Loving v. Virginia
(1) Interracial Marriage. VA barred, so the couple went to DC to marry. Police barge into the bedroom in VA and arrest.
(2) VA’s justification for the statute- racial purity, applied equally to both races. (***but not to other races))
(3) However, EP protects against all racial discrimination, this is the obvious purpose of the statute, so it violates the 14th. Mere “equal application” isn’t enough to serve a rational purpose.
(4) Rule: The Court declared Virginia’s anti-miscegenation statute, the “Racial Integrity Act of 1924”, unconstitutional, thereby ending all race-based legal restriction on marriage in the United States.
(5) Both 14th analysis was used, and the statute was determined to violated both EP & DP (fundamental right-marriage) analysis.
x) Zablocki v. Redhail
(1) Wisconsin Statute says can’t get marriage license or married out of state and then come back and have your marriage recognized if you have minor children and are not the custodial parent If
(2) Not up-to-date on child support.
(3) Must establish that none of your children will become wards of the state.
(4) Rule: Wisconsin’s statute requiring a noncustodial parent to obtain a court order before receiving a marriage license, which may be issued only when the noncustodial parent is up to date on child support and such child(ren) is(are) not likely to become public charges, is unconstitutional because the statute violates the Fourteenth Amendment’s equal protection clause.
(5) Rule: The case also reaffirms the status of marriage as a fundamental right.
(6) Z has a child in high school, which is on welfare and he is not yet up to date. Z wants to marry a 2nd woman who is pregnant with his child, but can’t because of the wis statute.
(7) Court says marriage is a fundame
ual couples
(2)
c) Polygamy
i) State v. Holm
(1) Facts
(a) Δ was convicted of bigamy
(b) He married Suzie Stubbs in 1986. Later, he married her then 16 year old sister in a religious ceremony.
(c) 16 year old sister
(i) Believed she was married
(ii) Understood that the marriage was not a legal civil union
(iii) Participated in a ceremony
(iv) Moved in with him
(v) Had intercourse and children
(d) Was a crime to purport to be married, and convicted
(2) Issue – Did he purport to be married?
(3) Rule – This bigamy statute included both legally recognized marriages and those not state sanctioned because of such a definition because it is supported by the plain meaning of the term.
d) Incestuous Marriage
i) Smith v. State
(1) Facts
(a) Young woman has incestuous relationship with uncle and sentenced to 3 years probation
(2) Issue
(a) Is Tennessee incest statute unconstitutional because of an adult’s right to engage in consensual and noncommercial sexual activities in the privacy of the adult’s home, as it is a right of intimate personal concern
(3) Ruling
(a) No suspect class – no strict scrutiny
(b) Anthropologist believe it forces families to go outside family and help protect you family members from exploitation
(c) Incest not common law in England – rule set by ecclesiastical courts
(d) American jurisdictions not deviating from this
(e) Nothing suggest a movement away from this.
(4) Rule – Incest is not a fundamental right, as there exists nor fundamental right to engage in an incestuous relationship as it would require the court to contradict centuries of legal doctrine and practice.
e) Minimum Age at Marriage
i) 18 minimum age to marry
ii) 16 to 17 with parental consent
(1) No parental consent – a voidable marriage, not a voided marriage
(2) Can ratify marriage – becomes not voidable is still together after
(3) Some do require some ratification events – normally, self ratifying though
f) Consent to Marriage
g) Common Law Marriage
h) The Putative Spouse Doctrine
3) Chapter 4 – Social and Economic Rights and Obligations
a) Interspousal Support Obligations
i) McGuire v McGuire
(1) Brief Fact Summary. Plaintiff married Defendant knowing that he was extremely frugal. Defendant provided Plaintiff with only meager amounts of money and Plaintiff was often forced to work individually to pay for needs. Plaintiff brought a suit to recover maintenance and support money.
(2) Rule: A spouse cannot maintain a suit in equity to secure support or alimony when the parties are not separated or living apart. For the courts to inquire into the living standards of a family would be contrary to public policy.
(3) Issue. Was the trial court correct in its finding that when a wife is abandoned by her husband, without means of support, a bill in equity will lie to compel the husband to support the wife without asking for a divorce decree? p. 259- Young widow with 2 kids remarries H doesn’t provide for W or give her any money at all. She petitions the court for help after she falls to ill to work. W cites 2 cases and CL of H to provide for necessaries/ However, the court notes that the cases cited to involved H & W that were no longer living together as H&W.
(4) Doctrine of necessities (H has to provide for wife-food, water, clothing) v. policy of non-intervention (court doesn’t want to get involved in micromanaging socioeconomic status.
i) Court says the H&W must be separated or divorced before the Court will step in.
b) Common Law Marriage
i) Factors
(1) Living together
(2) Holding themselves out as being married
(3) Mutual intention to be married
ii) Only valid in a approximately 11 states
iii) Some states have minimum statutory periods of living together
iv) Some states have other requirements, such as a verbal affirmation of a marriage in public