FAMILY LAW
Dean Kurtz
Spring 2011
INTRODUCTION
I) Themes of Family and Family Law
A) Government Regulation of Families
1) Originally interfering with families came through states’ police powers
(a) States decided the issues at the core of family law
(i) Eg. Who can get married, who can adopt, how divorces are handled, etc.
2) Beginning of Federal Interference
(a) Federal courts have established boundaries which states cannot cross
(i) Substantive Due Process rights and family
· Meyer: state of Nebraska said that public schools cannot teach German
⁃ Supreme Court said that parents have a right to have their children educated in the way they see fit. State can’t refuse to teach German.
· Pierce: Oregon said that between ages 8 and 16 kids must attend public schools.
⁃ Supreme Court said that parents have the right to have their children educated how they see fit, so they have a right to send their children to a private school id they so choose
· Prince v. MA: mother was sending out her child to pass out religious pamphlets for the Jehovah’s witnesses in violation of MA’s child labor law.
⁃ State could interfere with parental rights. Child rearing autonomy is not absolute. Parents can’t violate child labor laws
B) The Revolution in Families and The Direction of Family Law
C) Families and the Constitutional Right to Privacy (Page 1-20)
1) Evolution of the Right of Privacy
(a) Griswold v. Connecticut: the right of privacy is legitimate
(i) Enumerated rights in CST create a penumbra and zone of privacy
· There is a unified right of privacy
· Marriage is within of the zone of privacy
(ii) Expansion of Meyer and Pierce from parental rights in regard to their children to the relationship between the state and marital couples with limitations
(b) Notes
(i) Relationships Entitled to Constitutional Protection
· This opinion emphasized the importance of the marital family, but what about on-nuclear
· Other relationships (familial situations) have been recognized
(c) Eisenstadt v. Baird: This frames unconstitutionality based on equal protection
(i) If Griswold means anything, then the right to decide whether to procreate belongs to the two individuals within the married couple
· Attaches to the individual members of the marriage rather than the married couple fallacy
· “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” (Page 53)
(ii) Stands for the proposition for reproductive autonomy
· Leads from contraception to abortion in Roe v. Wade and Lawrence
(d) Notes
(i) From Family Privacy to Individual Autonomy
· The right of privacy protects more than the married couple as a unit, it protects certain decision-making by individuals.
(ii) Scope
· The right of Privacy encompassed the right to make procreative decisions, the right to marry, and the right to exercise discretion in raising one’s children
D) The Contemporary Right to Privacy (Pages 44-76)
1) The Road to Lawrence
(a) Strategized litigation (chose who and when to bring a claim)
(b) F
2) Lawrence v. Texas: law that prohibited sodomy between same-sex people was found to be unconstitutional
(a) Expressly overruled Bowers (framed the issue as whether there was a right to have homosexual relationship) this framed it as a broader right
(b) There are some state interests in the family that adhere in the individual
(i) The interest in privacy and decisions of procreation
(ii) The protection of the family is not complete
3) Notes
(a) Essential Holding
(i) This law fails because it had no legitimate purpose
· Can’t use morality as a reason to deny people of a lifestyle
(ii) Doesn’t exactly say that consensual adult relationships within the home fall within the right of privacy, but if there is its not fundamental
(b) Framing of the Protected Right and Justification
(i) Citizens’ autonomy to live their own lives, their human dignity, their right to be free from unwarranted government intrusions in the home, their interest in consensual sexual activity and the right to choose their own relationships
(ii) Morality cannot be gov’t only justification… legitimate state action must be able to be justified in a manner that citizens with a broad range of world views can accept
(c) Implications for Sexual Orientation Issues
(i) Doesn’t discuss gay marriage, but can imply a right to equality/dignity
(ii) Homosexuality’s role in custody decisions is limited by Lawrence
4) Implications Beyond Sexual Orientation because Morality cannot justify laws
(a) Sodomy: public, commercial acts or those involving minors, can still be criminalized
(b) Fornication: fornication laws applied to adult, consensual, private acts of unmarried persons are unconstitutional
(c) Cohabitation: goes along with fornication
(d) Adultery: shouldn’t be affected by Lawrence
(i) Deals with married people (and gays can’t marry)
(e) Polygamy: likely to be affected by Lawrence (as to adults acted consensually) but unclear how
(f) Incest: distinguishable from homosexuality because it might tear apart a family unit
MARRIAGE
II) Entering Marriage
A) Generally
1) Two ways to get married
(a) Ceremonial Marriage accompanied with a certificate
(i) Formal marriage
(b) Common Law Marriage
(i) Derives from Canon law of the church in marriage
(ii) Only 10 states (plus DC) recognize common law marriage (GA abolished in 1997)
2) Marriage as a contract
(a) Requires consent of both partied (usually need to be present at ceremony)
B) Formal Requirements (Pages 121 – 143)
1) Licensure and Solemnization
(a) The CEREMONIAL MARRIAGE requirement
(b) Model Marriage and Divorce Act § 206 [Solemnization and Registration]
(i) Requires qualified person to solemnize and certificate be filed
(c) Notes
(i) Licensing Process
· Every state has certain formalities to get a license
⁃ Ex: providing information to show one meets substantive requirements
⁃ Ex: many states require blood test
* But HIV testing has been challenged as unconstitutional
(ii) Waiting Period
· Can be between application and issuance of the license OR between issuance of license and performance of the ceremony
⁃ Gets people to think and take marriage seriously
(iii) Ceremony and Registration
· Requirements on who can solemnize
⁃ Usually, judges, justices of the peace and clergy NOT ship captains
(iv) Proxy Marriage
· Some states allow one party to be absent from ceremony (in extremely limited circumstances) where they have someone stand in (the proxy)
(d) State v. Denton
(i) For determining marital testimonial privilege, court found marriage where couple went through a religious ceremony but never got an actual license
(e) Notes
(i) Violation of Formalities
· Common Law rule
⁃ A marriage without a license is universally held to be valid in the absence of an express declaration but the Legislature that such a marriage is void
⁃ Validation: presumption of the validity of the marriage
* If one goes through the ceremony, then it is presumed valid
⁃ Courts will not overthrow the expectations of the couple if they believe they are married
· Creates a voidable marriage but NOT void
· Violating formalities is distinguished from violating substantive requirements, which would result in a void marriage
(ii) Void Versus Voidable
· Void: “marriages” that violate substantive requirements, not legally enforceable and will never be valid. Usually based on violation of substantive rules.
⁃ Need no judicial avowal of invalidity & are attackable in collateral hearing, can be attacked or ignored by anyone and cannot be ratified… ever
· Voidable: marriage violates substantive or formal requirements but can be remedied by actions of the parties: Exists until annulment (judicial declaration of invalidity) and can only be attacked by parties to the marriage (sometimes only by one)
* Ex: an underage marriage can only be attacked by the underage party
· Voidable/Void Marriage
⁃ Who can challenge the marriage?
* Void: anyone; Voidable: only the parties
⁃ Where would someone challenge?
* Void: anywhere
+ If the validity of the marriage is at issue in a contract case, workers compensation, death benefits, etc.
* Voidable: during annulment
⁃ When can someone challenge?
* Void: during the life of parties
* Voidable: annulment before condition is remedied
+ Ex: minor can only apply for annulment during age of minority
(iii) The Marital Communication Privilege
· Rules of Evidence: a criminal D has a privilege to prevent his spouse from testifying as to any confidential communication between the D & the spouse
· POLICY: encourage marital communication and frankness
2) Common Law Marriage [Exception to Formality Requirements]
(a) Generally
(i) Only 10 states (and DC) still recognize common law marriage
· History based on colonial nature of US where there was limited clergy. Common law marriage was a way to legitimate children without clergy blessing
(ii) There is no minimum time to establish common law marriage
· Except in New Hampshire, which requires parties to hold each other out as man and wife for 3 years prior to their death
(iii) Common law marriage is a real marriage
· Does not circumvent the substantive regulations of states that recognize CL marriage
⁃ Ex: no same-sex marriage
· A legal divorce or annulment is required to terminate àNo “common law divorce”
(iv) Creating a Common Law Marriage
· Historically
⁃ The parties (husband and wife) would have to agree to enter into a marriage
⁃ The contract between the two created a marriage (Could be done in secret)
· More modern
⁃ Difficulties of litigation and evidentiary support have led to heightened requirements
⁃ One would have to show
* Contemporaneous Agreement, Repute within the community, and Cohabitation
(v) POLICY
· Why abolish common law marriage?
⁃ Marriage is not hard to obtain – burden on individual is not high
⁃ Prevent fraudulent claims of marriage after a party’s death
⁃ Facilitates administrative efficiency and reduces litigation
* No litigation is ceremonial & license are required (either you have it or not)
· Why preserve common law marriage?
⁃ Recognizes the way people actually behave
⁃ Protects women, especially those who do not own property
* When man and woman live together for 40 years and man hold title to all property, upon his death she would get nothing
(b) In re Estate of Hall: when there is an agreemen
ucation for children, procreation, etc. would be empty without the right to marry being fundamental
· The right to abort as fundamental without the right to marry being a fundamental right would not make any sense
(iii) Justifications for strict scrutiny
· Emotional support and public commitment provided by a marriage
· Economic benefits derived from the marital relationship
· The sexual relationship
· The strong relationship between husband, wife and offspring of the marriage
(b) Notes
(i) Scope of Zablocki
· Strict scrutiny is not applied to laws that do not significantly interfere with marriage
⁃ Ex: filing fees do not significantly interfere, so get rational basis review
· Only applies to those who can get a recognized marriage under substantive requirements
⁃ Doesn’t interfere with prohibitions based on gender, age, incest, bigamy, etc.
3) Same-sex Prohibitions
(a) Generally
(i) Why same-sex couples want a marital right
· Practical: For immigration purposes, visitation in hospitals, to facilitate intestate succession and for benefits to spouses (health benefits, etc)
* Many states and benefit providers allow for “partners” to be covered
· Symbolic: Have the same stamp of recognition on the relationship
(ii) Public opinion on Same-Sex Unions
· Three factors acted as great predictors for the outcome of the public referendum banning to same-sex marriage:
⁃ Year in which amendment was voted upon
* The later, the less likely it would pass
⁃ % of people who say that religion is an important part of their life
* The higher the percentage, the more likely it would pass
⁃ Number of white evangelicals in the state
* The more white evangelicals, the more likely it would pass
· Acceptance is broadening in general, especially among the younger generations
· There has been a shift belief of whether homosexuality is something a person is born with or due to factors such as upbringing or environment
⁃ More than ever before believe homosexuality is something someone is born with
(iii) Two types of laws concerning gay marriage
· Laws that ban marriage between same-sex partners
· Laws that define marriage as between a man and a woman
(iv) Lawrence v. Texas and its relationship to gay marriage
· Proponent of “Proposition 8”’s position would be:
⁃ Lawrence v. Texas doesn’t apply
* Essence of Lawrence was to decriminalize being gay
* This is the state denying to legally recognize the relationship
⁃ Lawrence related to physical privacy
* This is about public recognition not privacy
⁃ The majority in Lawrence refused to rule on the recognition of marriage
* Prop 8 is about an institution that is defined as being between a man and a woman
⁃ The optimal child rearing environment is fostered by a heterosexual marriage
· People arguing to overturn “Proposition 8” would be:
⁃ Tradition is not a sufficient state interest
* Tradition of discrimination doesn’t make it right
⁃ Lawrence speaks of intimacy and relationships in a favorable light
* Lawrence discusses right to autonomy
⁃ Combining Lawrence with other precedent makes it irrational to prevent gay marriage
* Zablocki: this is a substantial infringement on one’s right to marry so court should apply strict scrutiny
* Varnum: no children will be harmed
(b) Varnum v. Brien: gay marriage ban in Iowa was found unconstitutional under Iowa’s CST
(i) Court says that the prohibition was based on animus and desire to discriminate against gays, so it was invalid
· Failed strict scrutiny because “compelling”/ important interests weren’t related to the law
· Can’t base a law on morality alone
(c) Notes
(i) Status of Same-Sex Marriage Bans
· No federal attack on gay marriage ban has been successful
· Some state claims have been successful
⁃ Some states recognize gay marriage or civil unions (same rights different name)
(ii) Constitutional Overview of Same-sex Marriage Prohibitions
· Sex Discrimination?
⁃ Most claims of sex discrimination fail
⁃ Analogized to Loving (whites could only marry whites)
* That was analogous to only letting heterosexuals get married, BUT men and women treated the same, so claim fails
