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Family Law
University of Illinois School of Law
Pea, Janice Farrell

Introduction – American Family Law: Definitions, Policies, and Trends
A.     Themes In Family Law
1)     About human behavior
2)     No area of our jurisprudence where Constitution has bigger effect on our real lives
3)     Family law of a particular time and place tells us a lot about that society
B.     Trends in Family Law
1)      Reproductive technology (surrogate moms, in vitro, AI)
2)      Women in the workforce due to ready availability of contraception, including the legalization of abortion
3)      Ready availability of no-fault divorce
4)      Changing sexual mores: Less pressure to conform to standard heterosexual couple norm
5)      Wider acceptance of single parenthood and unmarried couples having children
6)      Advances in health care: less infant mortality and longer life expectancy
7)      Changing economics, family is a unit of consumption not production
8)     Pre-nuptual agreements
C.     Purpose of Family Law
1)      Want parents to take care of their children
2)      Make sure that property is passed and that mothers and children have a claim on the property and labor of a man
3)      Nuclear family was a post-war largely midwest phenomenon, that model really never applied to the very rich or the very poor
4)      Legislatures and courts try to make and interpret one size fits all rules
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D.     Definition of Family
1)     Moore v. City of East Cleveland -local zoning ordinance limited occupancy of a dwelling to members of a single family, limited to no more than 1 dependent/independent married/unmarried child and their spouse. Petitioner lived w/son and 2 grandsons (grandsons were cousins); she was convicted of violating the ordinance.
 
Green= overhead
 
 
I)       Privacy and Family Law
A)    Substantive Due Process- all these decisions deal with substantive due process involving families, there is a fundamental right of parents to make these kinds of choices and it is deeply rooted in our tradition
i)        Meyer v. Nebraska (1923)- struck down a Nebraska statute that prohibited instruction in the German language in private schools on the basis that the restriction materially interfered w/the power of parents to control the education of their children; found a 14th A liberty interest in the right to “marry, establish a home and bring up children”
ii)       Pierce v. Society of Sisters (1925)- held, under general concept of due process, that state cannot require children to attend public, rather than private, schools. Catholic school and parents’ abilities to take children out of public schools.
iii)     Wisconsin v. Yoder (1972) – Amish parents cannot be required to send their children to school after 8th grade. Early American legal theorists’ idea of due process focused on procedural feature of the concept [notice and a right to be heard]. Under the theory of substantive due process, however, if a legislature passed any law which restricted vested rights or violated natural law, it exceeded all bounds of the social compact. Therefore the legisl

(a)   Is the classification over or under-inclusive
iii)     Three levels of review – the nature of the classification affects the burden upon the state to justify the classification
(a)   Strict Scrutiny
(1)    If the classification relates to a suspect class, such as race,
(2)    Or impairs a fundamental right
(3)    The classification will be upheld only if it is necessary to a compelling governmental interest
(b)   Mere Rationality
(1)    If the classification does not relate to a suspect class or fundamental right
(2)    It must bear a rational relationship to a legitimate governmental objective
(c)   Intermediate Scrutiny
(1)    When the classification is “quasi-suspect” such as one based on gender or illegitimacy
(2)    The classification must be substantially related to an important governmental objective
E)     Key Supreme Court decisions regarding privacy/personal autonomy
Griswold v. Connecticut (1965): substantive due process. Law prohibited drugs or medical advice to prevent conception to married couples. Held: Such a law is an invasion of a married couple’s fundamental right to privacy. There is a fundamental right of privacy in marriage, it is protected by 1A, 4A, 5A and 9A.