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Family Law
University of Alabama School of Law
Leonard, Jamie

Leonard_Family Law_Fall_2015
1. Introduction:
            A) today, the traditional Modern Family is changing. Certain influences on that change include the women’s movement, rising incidence of divorce, respect for family autonomy, children’s rights movement, and the gay rights movement
            B) family law reflects three contemporary trends: 1) federalization or an increasing congressional role 2) constitutionalization or the application of constitutional law and 3) a movement toward uniformity of state law
            C) marriage is considered to be the backbone of the traditional new family, but this is changing due to the fact that cohabitation and premarital sex, as well as same-sex relationships are tolerated these days
            D) the government has an interest in marriage because it is a sort of private welfare system that is self-supporting, and the state has an interest in creating a beneficial environment for children
            E) statistics show that marriage among well-educated and more well-off individuals is more of a solid institution that it is among poor and less educated individuals. Educated women have less children and less educated women have more
            G) Moore versus city of East Cleveland: definition of a family
                        i. Woman living with her sons and their two children that are cousins violates a statute that says cousins living together do not fit the city’s definition of family
                        ii. to a limited extent, the Constitution protects the freedom of family members to choose to live together as an extended family. An extended family consists of those members who are related to each other more remotely than the parent-child dyad, such as grandparents, aunts, uncles, and cousins
                        iii. in this case, the court said that the ordinance failed to serve the stated governmental interests (the prevention of overcrowding and minimizing traffic and parking congestion), and concluded that since living together as an extended family is deeply rooted in American history and tradition, this type of extended family is deserving of constitutional protection as the traditional family
2. Privacy rights in intimate relationships
            A) The Constitution protects certain family-centered rights from state interference – we loosely call them “privacy rights.” Such rights are considered “liberty interests” under the Due Process Clause of the 14th Amendment. The following cases study the expansion of this concept
            B) Meyer v. Nebraska: Court reverses a conviction of a teacher who violated a state statute forbidding instruction in German. Reads 14th Amendment liberty interests to insure freedom from bodily restraint but also other rights such as the Right: to make contracts or work, To acquire useful knowledge, To marry, establish a home and bring up children, To worship God according to the dictates of his own conscience, and To enjoy those privileges recognized as essential to the orderly pursuit of happiness by free men
            C) Pierce versus Society of sisters: SCT strikes down Oregon statute requiring parents to enroll children in public schools. Court says in dicta that statute “unreasonably interferes with the liberty of parents  . . . to direct the upbringing and education of children under their control.” 
            D) Griswold versus Connecticut: Executive Director (Estelle Griswold) and Physician (Buxton) at Planned Parenthood get themselves arrested for advising married women regarding contraception. CT statute (see p. 21) forbids use of contraceptives and prohibits aiding and abetting via counseling.
                        i. SCT holds that the CT statute is unconstitutional. Marriage is a relationship that lies within a constitutionally protected zone of privacy. Forbidding the use of contraceptives is destructive of the protected marital relationship and too broad to support any governmental interest.
                        ii. where is this privacy right found?: Privacy is not an enumerated constitutional right But in lives in the penumbrae of other provisions
1st amd – association, family life under Meyer and Pierce
3rd amd – quartering
4th amd – security of the home
5th amd – self incrimination
9th amd – rights reserved to the people
14th amd – rights secure by substantive due process clause: protects liberty interests
            E) Eisenstadt versus Baird: William Baird is a pro-contraception activist. Gets arrested  for giving away a sample after a lecture at Boston University (apparently for instructional, show-and-tell purposes). And is convicted under a MA statute forbidding anyone (with some exceptions) to give away contraceptives. Mass. Statute: General Rule: No one who is not a pharmacist or physician may give away contraceptives for purposes of preventing conception. Doctors and pharmacists may give married couples contraceptives for purposes of preventing conception. Single couples could get contraceptives for purposes of preventing disease but not for preventing conception (!!!)
                        i. Married and unmarried persons must be treated alike since the right is individual. “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
                        ii. where do we find this right?: Griswold established that there is a constitutional right of marital privacy that protects contraceptive choices. The source of the right is unclear. Baird extends that right to unmarried persons and clarifies that the right belongs to the individuals involved. Baird does not clarify the constitutional source of the privacy right – nor does it need to since this is a EPC claim.
            F) Lawrence versus Texas: Police are dispatched to a residence on a weapons disturbance complaint and Discover John Lawrence and Tyron Garner committing sodomy. Lawrence & Gardner are convicted under a TX statute criminalizing same-sex sodomy
                        i. Flashback: Bowers versus Hardwick: SCT via White upho

nsin law requires him to prove that he has paid his support obligation AND that his daughter is unlikely to become a public charge. He has paid none of his support obligation And even if he did, she would likely remain a public charge
            i. If a statute significantly interferes with the exercise of a fundamental constitutional right (like the right to marry in this case), it must be supported by sufficiently important state interests and closely tailored to effectuate only those interests. Such interests are subject to strict scrutiny or “critical examination.” The court reasoned that less drastic means are available to compel compliance with support obligations without impinging on the right to marry
C) the Supreme Court established that the right to marry is a fundamental right. As a result, state restrictions on the right to marry are subject to strict scrutiny. Racial restrictions on marriage and a restriction to marry based on poverty are unconstitutional
D) Recap of Intimacy and Marriage Cases
The Constitution protects a wide range of family-related “privacy” interests:
*        Housing (Moore)
*        Education of Children (Meyer & Pierce)
*        Contraception & Sex (Griswold & Bair)
*        Intimate Association (Lawrence)
*        Marriage (Loving & Zablocki)
*        Generally speaking the courts will intervene when state action encroachs on privacy rights without sufficient justification
More specifically:
Individuals, married or single, have a constitutional privacy right to have and use contraceptives, to make procreative choices, and implicitly have sex (Griswold, Baird)
The decision to engage in sex is one aspect of the constitutionally protected right to form intimate relationships (Lawrence)
*        The constitutional authority for these rights is the Due Process Clause of the 14th Amendments (Lawrence)
*        Fundamental rights are no longer restricted to those confirmed by history and tradition (Lawrence)
*        Promotion of morality based on animus toward a group is not a legitimate government interest (Lawrence; Romer v. Evans)
*        Marriage is a fundamental liberty interest protected by the 14th Amendment Due Process clause and necessary to the pursuit of happiness (Loving) 
*        State rules that “substantially interfere with a fundamental right” cannot be upheld unless supported by “sufficiently important state interests” that are “closely tailored” to effectuate those interests  (Zablocki)