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Family Law
Temple University School of Law
Glennon, Theresa


I. Defining “Family”

Moore v. East Cleveland (1977)

Facts: Cleveland had a zoning statute that specified that only certain families could live in that housing (essentially nuclear families). Moore was a grandmother facing criminal charges for living with her son and grandson and his cousin (who was 10 and had lived with his grandmother since age 1 when mom died).

Holding: Zoning statute is unconstitutional. Family life protected by fundamental right to private and triggers strict scrutiny analysis.

· The family is protected by fundamental right to privacy

· Uses Meyer, Pierce, Prince, Loving, Griswold, etc.

· The government can only interfere if narrowly tailored (strict scrutiny)

· Zoning interests are legit

· But statute is not narrowly tailored (degree of kinship doesn’t necessarily mean less people living there, driving etc.)

Concurrence: Points out the racial significance of the law that prefers (white suburban) nuclear families to (black) extended families even though there is a strong history of extended families for support/sustenance in history/tradition.

Positive Liberties: enforceable affirmative right

Negative Liberties: state cannot interfere (ex: care, custody, control of children)

II. Constitutional Right to Privacy in Intimate Relationships

Meyer, Pierce, Prince = care/custody/control discussed later

Griswold v. CT (1965)

Facts: Law banned contraceptives for the purpose of preventing conception (including married people). Contraception was allowed to prevent disease. Doctor sued b/c prohibiting ability to do his job. Tried to get arrested. Eventually head of PP and professor brought suit on behalf of married patients who needed to prevent pregnancy for medical reasons. Really only affected poor people who couldn’t access private medical care.

Holding: Contraception law is unconstitutional. Constitution includes an implied right to privacy (in marriage).

· Plurality looked at the penumbra of privacy created by the Constitution. Used 1st, 4th, 5th, 10th amendment.

· Concurrences used 9th amendment (specifically allowing for un-enumerated rights) and/or 14th amendment (due process liberty)

· Fundamental right à strict scrutiny

· Interest: prevent extramarital affairs (not that legit)

· Statute not narrowly tailored b/c contraceptives allowed to prevent disease and generally illicit sexual conduct not really affected by married couples using contraceptives

· Dissents:

· Argued that this was an issue for the legislature

· Not up to the court to decide if the statute was wise but to see if unconstitutional

· No right to privacy in constitution so must defer to legislature

Eisenstadt v. Baird (1972)

Facts: unmarried woman gets contraceptive after a lecture

Holding: Contraception statute is unconstitutional. Equal protection means similarly situated unmarried/married people must be treated with respect to fundamental right of privacy.

· Interest in preventing premarital sex? No b/c doesn’t prevent married people from having sex with unmarried people. Portionality of pregnancy as punishment doesn’t match misdemeanor crime of fornication.

· Interest in preserving health? Probably a fake reason but, if real, health is as important for married as unmarried people, and there are already laws regulating potentially harmful drugs.

· Interest in prohibiting contraception? Doesn’t matter b/c if there is an interest it would apply equally to unmarried as married people.

· Right to privacy in married couple comes from right of privacy of individuals

Concurrence: First amendment issue b/c law prohibits unmarried women from receiving counseling on contraception

Dissent: issue is dispensing medical material without a license not the marital status of the recipient

Lawrence v. Texas (2003)

Facts: Police walk-in on two men engaged in prohibited (oral/anal) sex.

Holding: Anit-sodomy law is unconstitutional. Right to privacy in sexual conduct in one’s home.

· Bowers overused “history”

· State trends away from anti-sodomy laws

· Right to privacy is an individual right and TX has no right to intrude

· Morals of majority cannot infringe of liberty of all.

· Kennedy uses rational basis analysis b/c he wants these types of bans to totally disappear.

· Fundamental right

· Doesn’t even pass rational basis (strict rational relationship test)

III. Marriage

Traditionally: economics, protect young people, perpetuate social values/norms, legal responsibilities for children, built into other areas of law (immigration, tax)


· Marriage License

o From the state in which the marriage will be performed

o PA has a 3 day waiting period and must be married within 60 days

· Statement that you are disease free (used to require STD testing)

· PA used to have Common law marriage and still valid if entered into before January 1, 2005. Requires:

o Cohabitation

o Verbal desire to be married

o Hold themselves out as married for all purposes (not just the ones that benefit them)

· Someone must officiate (exception: Quakers)

· Previous marriages must be legally terminated

· Age: over 18

o Parental consent for 16–18

o Judicial consent under 16 (usually only allowed if the woman is pregnant)

· PA does not have marriage by proxy but some states do

· Cannot marry cousins, aunts, uncles, grandparents, parents, siblings

· I

t Hawaii legalizing marriage would enforce their law on the rest of the country.

Defense of Marriage Act (1996):

1. Marriage in a state where legal does not apply to any other states. Including rights asserted for divorce etc.

2. No federal law will have legal same-sex marriage

Goodridge v. Dept of Public Health (MA 2003)

Affording a relationship legal status anchors stable relationships

Marriage is a fundamental right and all laws must have a legitimate purpose

Provides a proportionality analysis

Hernandez v. Robles (NY 2006): no fundamental right to “same-sex marriage,” does not discriminate against anyone. Need to support marriage to make sure hetero couples settle down and give their children stability. Same-sex couples don’t need this incentive.

In re Marriage Cases

People finding same sex marriage suspect classification. Not valid.

CA legalized. Then Prop 8 passed and changed CA constitution.

Perry v. Schwarzenegger (2010): Prop 8 is unconstitutional

Challenged based on SDP, EPC

PP: State does not participate. Proponents v. couples who want marriage

Proponents assert interest of state:

· Procreative

· Encourage sexual activity within marriage

· No EPC b/c domestic partnernships have the same rights/responsibilities

o Power of the symbol. Tradition/societal respect. Not in the realm of government action.

Holding: Still marriage so gets strict scrutiny regardless of gender of couple


· Right to have a relationship that has moral/religious underpinning à discrimination. (Romer argument) and morality doesn’t go far enough.

· Domestic partnerships are not equal and their very purpose was to prevent them from received marital status

· Other arguments

o Itself irrational/arbitrary/capricious: heighted rational basis…really subjected to greater scrutiny

§ Prop 8 justifications really just a moral basis

§ Prop 8 actualy increases sex outside of marriage but limiting a class of people from marrying

o Discrimination on the basis of sex (closely interrelated but

o Should be considered a suspect class (but declines to establish this)