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Family Law
University of Illinois School of Law
Purvis, Dara E.



FALL 2012

1. Introduction, pp. 1-36

Moore v. City of East Cleveland (SCOTUS, 1977)



Ms. Moore lives in East Cleveland, Ohio, with her son and two grandsons (first cousins). An East Cleveland housing ordinance limits occupancy of a dwelling unit to members of a single family, but defines “family” in a complicated way which in pertinent part limits family to “not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child,” i.e appellant’s household does not qualify. Appellant was convicted of a criminal violation of the ordinance.

Powell delivers plurality (4) for the court:

Distinguishes from Belle Terre

Where the Court upheld a different definition of “family” also in an occupancy restriction because the ordinance in Belle Terre only affected unrelated persons– an unlimited number of blood relations could cohabitate.

Where Belle Terre encouraged family values, the law here “slic[es] deeply into the family itself.”

Intrusion into the family removes regularly afforded judicial deference so that neither Euclid nor Belle Terre govern

Level of review? (Balancing limit on right v. gov interest and how well served)

Relies on Pierce and Meyer to find a right protected by Due Process (14th)– personal choice in family matters

But family is not beyond regulation

The Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation

This law fails because it affects the substantive right of personal choice in family matters and the state interest is at best “marginally” served by the regulation

Limiting cohabitation of blood relations through this definition of family has little impact on avoiding overcrowding, traffic congestion, and an undue financial burden on the school system

Court rejects state’s suggestion that the rights of family choice from Pierce and Meyer only apply to the nuclear family–

Defining due process rights and the resulting limits on them come from a careful study of history.

In this case, history “supports a larger conception of family”–even if modern society sees less and less of the extended family household

Holds: “[T]he Constitution prevents East Cleveland from standardizing its children–and its adults–by forcing all to live in certain narrowly defined family patterns.”

Brennan concurs–

Same grounds.

Emphasizes that nuclear family of E. Cleveland’s law is a white suburban construct of recent date

Griswold v. Connecticut (SCOTUS, 1965)



D convicted of violating the Connecticut birth control law when they gave information, instruction, and medical advice to married persons. D are allowed to raise the third party claims of the married persons with whom they have a professional relationship

Douglas — opinion

Relying on Pierce and Meyer announces a notion of a penumbral right to privacy emanating from the 1A.–a right related to the one directly announced by the constitution like protections given to “associations”

1–right of association

3–prohibition on quartering soldier in one’s home

4–right to be secure in person and papers against unreasonable search and seizure

5– right against self-incrimination

9–rights retained by the people

The present case — law concerning USE of contraceptives, not their manufacture or sale

Law is too broad for the Court as it reaches into marital bedrooms

Goldberg — concurs

Agrees CN’s law unconstitutionally intrudes on marital privacy

Emphasizes the 9A–additional fundamental rights reserved to the people by the framer’s language

i.e. there are fundamental rights protected by the Const. under 9A which are not enumerated elsewhere

What are they then?

No Lochner prob.

Judges “must look to the ‘traditions and conscience of our people’ to determine whether a principle is ‘so rooted [there] . . . As to be ranked as fundamental.’”

Eisenstadt v. Baird (SCOTUS, 1972)



Baird was convicted for (1) exhibiting contraceptives and (2) for giving a young woman a package of vaginal foam. Baird attacks the second of these two grounds.

Brennan — opinion

Standing issues

By treating married and unmarried persons differently Massachusetts law violated the EP clause of the 14th A

Deterrence of pre-marital sex?–No

A 5yr sentence for distributing contraceptives cannot reasonably be believed to have the purpose of deterring the misdemeanor of “fornication” which is punished by a 90 day sentence

Also where contraceptives are allowed for the prevention of disease, but not to prevent conception suggests that the law is not trying to advance the legitimate state interest of citizen safety

Regulate distribution of potentially harmful activities–No

Nope- if there was such a need to have a physician prescribe, then the need is as great for married as un married

Different treatment suggests that safety is not the legislature’s real reason

Can state just prohibit contraception through this law?

Court doesn’t reach– whatever the right is, it must be the same for married and un-married

Douglas — concurs

1A logic– Baird was giving a speech and distributing info. That is protected under 1A.

White — Concurs

Charge not proven because state offered no ev. that the person Baird gave the foam to was unmarried

Burger — dissents

He violated law, has no standing to raise claims for those who can’t access contraceptives– this is a valid health measure

2. Entering marriage

a. Substantive requirements; pp. 68-86


1) US History

First 100 years

Little to no regulation; frontier society precluded enforcement so relaxed rules

End of 1800s/Early 1900s

Surging interest in public control of marriage


Eugenics (health requirements for marriage)

Stricter age requirements



Lowering age requirements, no mandatory health screenings

Less concern with regulations intended to keep “moral purity” of marriage

Post-Griswold right to marriage privacy


We are entering an era where previously universally held and therefore unstated rules concerning marriage are being challenged

2) Policy Considerations

Marriage is both legally constructed and private

Contrast between increasingly held belief that marriage is strictly personal and the long existing public regulations on marriage

Lawmakers seek to define or reinforce foundational social values relating to citizenship, morality, child-rearing, gender and race.

“The public is deeply interested” in maintaining the “purity” of marriage. Maynard v. Hill (SCOTUS 1888)

Two factors contributing to the deregulation of marriage

(1)Shift in the understanding of the purpose of marriage

Used to be focused on external results (kids, social ties, support of women, place for appropriate sex), now looks internal (facilitates bond of partners)

(2) Recognition of constitutional limitations on government power over family life

Expanding notions of privacy rights

Naim v. Naim

· A white woman married an Chinese man and she wanted an annulment

o She said that, since the marriage was never legal, it should be annulled

o The husband (who, apparently, wanted a divorce, not an annulment) said that the law was bullshit

· The Supreme Court kind of punted on this issue because they’d just decided Brown v. Board of Ed and didn’t want people to lose their shit

Loving v. Virginia (SCOTUS 1967)



Two VA residents of different races married in DC in 1958 and returned to VA to make their marital home. They were convicted of violating VA’s anti-miscegenation law and were sentenced to a year in jail. The sentence was suspended for 25 years so long as the

zing fundamental rights

Claimed liberty must be:

“Deeply rooted in this nation’s history and traditions or”

“Implicit in the concept of ordered liberty, such that neither justice nor liberty would exist if [it] were sacrificed.”

“Homosexual” conduct did not qualify (failing to note heterosexual sodomy)

Distinguishes earlier family protections by saying there was no connection to family, marriage or procreation

Where Bowers failed to protect same-sex sexual conduct, there was little hope for same sex marriage under the same privacy principle

Then came Lawrence v. Texas

Lawrence v. Texas (SCOTUS 2003, p. 88)


Police were called to Lawrence’s house after a reported weapons disturbance. After entering Lawrence’s apartment, officers observed Lawrence and another man having sex. Both were arrested and convicted of violating a Texas law which made it a crime to have oral or anal sex with a person of the same sex.

They argue that the law violates the DP and EP clauses of the 14th A

Kennedy (Majority)

Looks to Griswold for the substantive reach of the Due Process clause of 14th A

Rejects Bowers

Because of how Bowers viewed the issue

Focused too much on the act prohibited

Not enough focus on notion of the state intruding into the most private of human behaviors to control those personal relationships which it is within the law for people to engage in

Notion that you get to be in a romantic homosexual relationship without that being criminal, and that is what the law was after, not just the sexual act itself

Animus against homosexual conduct not “deeply rooted in this nation’s history and traditions” (rejection of contentions in Bowers)

No American history of laws directed particularly at homosexuals, just prohibitions on non-procreative sexual activity in general

Laws directed at homosexuals in particular came in last 3rd of 20th C.

“The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of criminal law.” — no, the resp. of the court is not to enforce a moral code

History is the starting point od Substantive DP analysis, not the end

ALI’s Model Penal Code does not criminalize consensual sex done in private

ALI was promulgated after Bowers, suggests growing acceptance of private consensual sex no matter the people

Also notes that even in the era of Bowers most states weren’t even enforcing these laws

25 states had law at Bowers, only 13 do now

2 cases case Bowers into more doubt

Casey–privacy to personal decisions

Romer v. Evans–struck down amendment to Colorado’s st. const. which removed just homosexuals from the protections of the state’s anti-discrimination laws– born of animosity and bore no rational relationship to a legitimate government interest