I. Themes
(1) The Big Themes are based upon the transformative nature of family law.
i. People live differently
ii. Gender no longer defines family law
iii. Marriage has a diminished role in society b/c people are married for a shorter period of their lives (wait longer, divorce is more frequent)
iv. Co-habitation w/o marriage is normal
v. Childbearing outside of marriage increased dramatically (1/3 children born outside of marriage)
(2) Sub-Themes in the course
i. Traditionally state law → Changing now to more federal encroachment (e.g., DOMA, ASFA, child support)
1. Federal courts will not hear family law cases even if there is diversity, the Supremes Court have found an implied exception ” Domestic Relations Exception”
2. DOMA- Defense of Marriage Act- “defines marriage for all federal law purposes as between one man and one woman” and “states don’t have to recognize a same sex marriage in another state”
a. Ted Olsen and David Boise are challenging it.
3. Child Support- Facilitate interstate enforcement
4. ASFA- Adoption Safe Family Act – child abuse and neglect proceedings
ii. Discretion← → Rules (e.g. “Best Interests”/ Equitable → guidelines/joint custody)
1. Clear Rules →Equitable Rules replaced the bright line rules
2. We’ve moved back towards rules b/c judges weren’t uniform in their discretion (e.g. child support guidelines)
iii. Public → Private Orderings (e.g. No-Fault divorce, covenant marriage, partnerships, contracting/agreements)
1. Most Americans think the government shouldn’t be involved in marriage
II. Constitutionalization of family law –Constitutional law limits the rights of states to regulate
(1) Moore v. City of East Cleveland — City passes an ordinances that if you want to live in this suburb, you have to live in a single family. The Moore family in trouble because they didn’t meet the definition. Grandma lives with the son and his son & one more grandchildren whose mother is dead. The family either has to move out, or the grandson has got to go. Mrs. Moore was sent to jail for five days and paid a twenty five dollar fine because she would not kick out her grandson.
i. Must overcome Village of Belle Terre v. Borass where the Court ruled that a city ordinance preventing six college students living together in house was okay.
ii. Why was the Belle Terre ordinance constitutional?
1. Rational Basis Test- baseline test under both Due Process and Equal Protection
2. Challenger has the burden of persuading the court that the law is irrational. Must prove NO rational relationship to a legitimate state purpose. Legitimate is very broadly defined
iii. Is the definition of family in East Cleveland rational?
1. Probably, but East Cleveland loses.
iv. Why does East Cleveland lose?
1. It’s reviewed under “Fundamental Liberties”
2. Higher scrutiny applied when law discriminates against an exercise of fundamental right
3. Fundamental Rights are protected by BOTH substantive due process & EP
a. EP argument doesn’t work here b/c “extended family” is not a protected class. No evidence that law was passed w/ intention of discriminating against black families.
4. Why Did Moore trigger heightened scrutiny?
a. The ordinance goes after family and tells certain families that they can’t live together.
b. The text of the Constitution says nothing about family. But, we know there is an implication that family is a private institution that the state can’t enter.
c. Court applies the “Deeply Rooted Traditions” Test
i. Griswold v. Connecticut – If the Constitution doesn’t list a right, run this test b/c the full scope of liberty guaranteed by the Constitution is not spelled out in the document.
ii. Tracing “rights” through American history allows the court to say “we aren’t making these decisions”, “the people make these decisions through their norms”.
d. How does this apply to Moore?
i. Americans have a tradition of family that extends beyond the nuclear family, thus the State can’t attempt to define it
ii. Unclear if the Moore court applied strict scrutiny b/c it uses “ambiguous” language
(2) Constitutional Test:
i. Due Process: Under due process, the government’s burden is to show that depriving all people of a liberty is necessary to achieve a compelling goal.
1. Is liberty interest “fundamental”?
a. If yes, strict scrutiny (government must prove narrow tailoring to compelling interest)
i. If this happens, then the government must show extraordinary proof that they have a good reason for doing what they did. There must be exceptional circumstances.
b. If no, rational basis test (challenger must prove no ration
‘t get a marriage license unless you confirm that you are paying your child support and then if you are likely to continue to pay, you can get a marriage license. The law is ultimately held unconstitutional but the Court splits in its reasoning.
1. Marshall in the Majority Opinion – The law is unconstitutional. It’s unclear what level of scrutiny is being applied, but doesn’t use the magic words. He says “state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to ‘rigorous’ scrutiny.”
2. “When statutory classification significantly interferes w/ the exercise of a fundamental right, it cannot be upheld unless it is support by sufficiently important states interests and is closely tailored to effectuate those interest”
3. WI argues that they need the law b/c
a. To counsel parents about the importance of paying child support
b. Incentivize for people to pay child support
4. Ct. says there are other ways for WI to meet these goals
5. Stewart concurring the judgment
a. Won’t say marriage is a fundamental right , but the law is nonetheless unconstitutional
b. Applies Rational Basis test and the law fails
c. Meyer thinks this application is generous. It is rational to think that a law like this will prevent someone from having more children. Maybe they don’t believe in sex before marriage.
6. Powell concurring in the judgment
a. This court hasn’t in previous decisions or in this case declared marriage a “fundamental” right
b. State has power to regulate marriage, but in cases where “the gov’t intrudes on choices concerning family living arrangements” in a manner which is contrary to deeply rooted traditions”, the Ct. should apply strict scrutiny
iii. Other state regulations, like bigamy, incest, Ct. only needs to apply rational basis review b/c not deeply rooted in American traditions
