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Family Law
University of Illinois School of Law
Meyer, David D.

Family Law Outline
I.          Introduction
a.         The New Family
i.          Shifting balance in the roles of State and Federal Government
1.         Matter of state law is dominant
2.         Domestic relations exception to diversity jurisdiction in family matters
3.         Evidence of increasing federal encroachment in this area. Congress becoming dissatisfied with how states are handling family law.
4.         Growing encroachment of the Constitution in Family law
a.         States need to pay attention to the constitutional limitations being imposed
ii.        Role of morality
1.         Individuals freedom to deviate from the public norms
a.         Race, gender roles
2.         Role of the government to enforce/proscribe its own morals for the community
a.         Harder to do w/ changing views on moral consensus.
b.         Equal protection (suspect class discrimination) or Due Process (deprives fundamental right) violation Analysis SUSPECT CLASSES → classifications based on race, national origin, or alienage are subject to “strict scrutiny” – presumed to be invalid unless state can carry extraordinary burden of proving that the discrimination is necessary or “narrowly tailored” to a state interest that is not merely legitimate but “compelling.”
c.         QUASI-SUSPECT → classifications based on illegitimate status of child or gender are subject to “intermediate scrutiny” – govt can overcome presumption of unconstitutionality by carrying somewhat lesser burden (as compared w/ strict scrutiny) of establishing that the classification is “substantially related” to achievement of an “important” state interest
3.         Rational basis test
a.         If law does NOT discriminate on basis of ‘suspect classification’ or deprives a ‘fundamental’ right
b.         P must prove that the law is not rationally related to a legitimate state interest
4.         Strict Scrutiny test
a.         If law DOES discriminates on basis of ‘suspect classification’ or deprives a ‘fundamental’ right
b.         D must prove that law is ‘narrowly tailored’ to achieve a ‘compelling’ state interest
5.         Presumption of constitutionality changes based on the test, winner usually depends on who has the burden
a.         RB: P has burden, presumption of constitutionality
b.         SS: Government has burden, presumption of unconstitutionality
iii.      Equal Protection Test for Gender Discrimination
1.         Intermediate scrutiny Test
a.         D must prove law is ‘substantially related’ to an ‘important’ state interest.
iv.      Moore v. City of East Cleveland, Ohio
1.         Cleveland passes a zoning law that defines single family, which excludes the Moore household
2.         Due Process violation: This law violates the fundamental right of freedom of autonomy or choice in family living. Evidence of this fundamental right is not in any text but rather b/c family is deeply rooted in nations history and tradition
3.         Rule: ‘Choices of relatives in this degree of kinship’ and family is specially protected, heightened judicial scrutiny applies, b/c of the traditional views of the family, its deeply honored and valued in traditional societal interests and is protected fund. righ0074
4.         Type of Scrutiny
a.         Crt is ambiguous, appears to be a strict scrutiny
b.         Crt says law excludes too many groups, can’t standardize the families into such a narrowly defined family pattern
c.         B/c encroaches on a fundamental right, law must be narrowly tailored to achieve a ‘compelling’ state interest
5.         Moore gives us potential limitations on states in regulating family, but not sure what limitations are or how far reaching they are
v.        Lawrence v. Texas (S.Ct., 2003)
1.         Texas Sodomy Crime Case
2.         UNCONSTITUTIONAL violation of DP Rationale: Fundamental right of privacy statute does not forward a legitimate state interest; imposing moral code on others is not legitimate state purpose
II.       Marriage
a.         Constitutional limitations on State Regulation of Marriage
i.          Limitations on Marriage
1.         Monogamy, Same sex, Age, Incest, Capacity
ii.        Loving v. Virginia (Equal Protection Case – Suspect Classification)
1.         SC says in cases sans racial distinctions all State is required to do is provide rational foundation for the discrimination but in this case, State must meet heavy burden of justification which 14th Amendment has required of statutes drawn according to race (i.e., strict scrutiny – state has the burden of proving that statute is narrowly tailored to a compelling state interest (not unnecessarily burdensome))
iii.      Zablocki v. Redhail (Due Process Case – marriage is fundamental right)
1.         Wisconsin marriage statute requires non-custodial parents who need

imination laws towards homosexual. Bare animosity based on morality is not permissible.
d.        Interest in child welfare
4.         Domestic Partnership Law
a.         Legislatures created a law permitting same-sex couples to register as domestic partners: Hawaii, Vermont
b.         A civil union, not a marriage but allows them to claim all state law benefits that go along with being married
c.         DOMA: Defense of Marriage Act
i.           Many states refuse to recognize a foreign same sex marriage
ii.         Federal DOMA: provides that no state shall be required to give effect to relationships of a person, such as a same-sex marriage.
iii.       Civil unions might not apply since they are not recognized marriages
ii.        Polygamy
1.         State v. Green – Bigamy statute is neutral and of general applicability and the state is thus not required to show that the interests it serves are ceompelly or that the statute is narrowly tailored in pursuit of those interests. The state is only required to show that it is rationally related to a legitimate government end.
2.         Bronson v. Swensen – Bigamy statute challenged after Lawrence, court holds that statute is still valid because it does not regulate the defendant’s private life but the recognition of the marriage by the state of Utah.
iii.      Incest
1.         Smith v. State
a.         D argues that ban on incest violates right to privacy
b.         Court says that there is no all-encompassing right to privacy
c.         The taboo against incest is a consistent and universal tradition based upon historical and anthropological reasons
i.           There is no fundamental right to an incestuous relationship thus rational basis
ii.         Rational Basis test – Incest is related to the morals and health and safety concerns of a society
iv.      Age and Capacity
1.         UMDA §205- outlines universal requirements
a.         18 years old