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

                A. The American Family and the Law:
                                • Changes in Family & Family Law:
s Transformative Change:
–          Reflection of the changes: ND-1979: husband was head of the family and the decider, had obligation to take care of family and wife, had control
s Stateà Federal roles (e.g. DOMA- one man one woman, states need not recognize gay wedding in other states, ASFA- Adoption of safe families act, Child support)
s Change Factors:
–          Gender used to define family law, make had right of authority
–          Role of marriage is vastly different
–          Child Bearing
–          The way people live
s Cannot get family law into the federal courts- except from diversity jurisdiction family matters
                                • Discretion v. Rules: (e.g. best interests/equitable, Guidelines/Joint Custody)
s Custody and entitlement issues- from clean simple rule to looking at discretion (to be more fair), best interest of the child= task for assigning children, distribution of property is done by equity, also alimony
s Clean rules led to inequity- law changed to move towards discretion, equitably as the court sees fit.
s Back to rules and guidelines: best interests/equitableà Guidelines/Joint Custody
                                • Public à Private Ordering:
                                                s No Fault Divorce: personal business- not government related.
s Covenant Marriage: go back a little towards fault, back towards more restrictive government control- you must elect into it, more like a contract
s Contracting/Agreements: allowing people to determine their own rights and obligations, consequences of divorce
s Constitutionalization of Family Law: Limits state power to regulate families
Moore v. City of East Cleveland: P lived with two grandsons who were first cousins and her son. Court held that the choice of relatives in degree of kinship to live together may not be lightly denied by the state. The interests of the original law are not served (to minimize traffic, prevent overcrowding…). The test for whether family is fundamental, the form in the road will be determined based on whether the right is deeply rooted in the nations history and tradition.
–          Equal Protection: No discriminatory purpose, just disproportionate fact. Not a Suspect class (which would bring up a higher scrutiny),
–          Reason for higher scrutiny is because law cuts deeply into the family. Deprives liberty to define family.
–          Family is deeply rooted in American culture
–          Basis used in this case: This court must examine carefully the importance of the government interests advanced and the extent to which they are served by the challenged regulation.
–          Don’t have to final all the rights in the text b/c of 9th amendment- can recognize non-textual rights so long as the fundamental liberty can be deeply rooted in nation’s history and traditions. Family is deeply rooted and fundamental
–          Not strict scrutiny but heightened.
–          Hazy to establish boundaries- Fundamental right- but “hedged”
Belle Terre: 6 college students not allowed to live together- did not have the closeness of family or take away the fundamental rights of a family. Used rational basis-baseline test. There were legitimate interests in keeping them from living with each other (noise, parties, congestion). Rational relation is incredibly loose.
                                • Substantive Due Process: (Procedural Due Process- right to be heard, court, etc.)
                                                s “Ordinary Liberties” à Rational Basis- rational relation to legitimate interest
s “Fundamental liberties”à Strict Scrutiny- narrow tailoring to compelling interest, Fundamental liberties are sacred, more limits on government encroachment
s Is Liberty interest fundamental? If yes, strict scrutiny (D must prove narrow tailoring to compelling government interest), If No, rational basis test (P must prove no rational relation to legitimate interest)
• Equal Protection: focuses on classification (triggered when law only demines liberty to certain people)
                                                s Suspect Class: race, alienage
s Classification on fundamental rights: Strict Scrutiny, fundamental rights protected by substantive due process and equal protection
s If Suspect, then strict scrutiny.
s If Quasi-suspect (Gender, illegitimacy), then intermediate scrutiny (D must prove “substantial relation to important interest”
s If Non-suspect (age, wealth, etc.), then rational basis.
s Does classification relate to “fundamental right”? If yes, strict scrutiny, If no, Rational basis. The government must show extraordinary reasons.
Bowers: Police entered unlocked apartment for unrelated reasons, found both men engaged in sexual relations, and arrested Hardwick for sodomy. Used the rational basis test- whether legitimate state interest in reinforcing popular morality. Since Sodomy was not deeply rooted in traditions, state’s legitimate interest in reinforcing majority values when it comes to sexual conduct.
Lawrence v. Texas: Rational basis test was used because the law picked on a politically unpopular group. Maybe about right to privacy
– Over-turned Bowers. Differed:
1. Framing of Claimed Liberty: Not about sodomy, about personal relationships. The description of the liberty interest at stake is different. The more general the law, the more power you give to the courts to determine what are off limits. Determines whether liberty has constitutional support.
2. Validation: Determining whether it is a deeply rooted tradition. Lawrence wants it to be labeled as an “emerging awareness”, not the deeply rooted tradition.
3. Popular Morality: preserving popular morality is not a legitimate state interest, held just because a majority finds it wrong, the state must show a social harm in order to keep it illegal.
4. O’Connor: agrees with the outcome, but not wiling to overrule Bowers. Uses equal protection clause because it discriminates against gays and lesbians in a way that is unsupportable, puts the law in a broader context with other laws that impose real disability and penalty upon G&L’s. The law targets a politically challenged group just out of bare dislike.
Gluxberg: Ending life early through medical intervention was not a fundamental right since there was no deeply rooted tradition, and therefore rational basis applies.
I. Entering Marriage:
                A. Substantive Requirements for Entry into Marriage:
Loving v. Virginia: Racial classification- Suspect Class, strict scrutiny. Interracial couple married in DC, Virginia would not recognize the marriage and kicked them out, it was a criminal offense. Law was unconstitutional because of equal protection and due process. There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. No compelling state interest or even important state interest. VA argued not suspect since it applies to both races. Court held separate but equal not ok. Due Process Grounds: unconstitutional because Marriage is on of the vital personal rights essential to the pursuit of happiness. Denies substantive due process because it denies the substantive right to marriage.
Zablocki v. Redhail: WI denied right to marry if they have minor issue with law (custody in this case). Under equal protection, this is not allowing marriage to a certain class. Not suspect, but p

2. No civil marriage- get state out of the business of marriage and cede area to private agreement and religious organizations
3. Alternative Institutions: (Anything But Marriage- compromise- Religion rationalizes)
                – Civil Unions- Vermont gives same sex couples the same benefits
                – Domestic Partnerships- almost all the same benefits
                                s Lawrence: Holds that states are not permitted to regulate on the basis of popular morals- moral sentiment alone is invalid regulation.
s Benefits: Difference between co-habiting relationships v. marriage relationships- Co-habiting are less stable- report poorer quality relationships, researchers found married spouses measure a much higher level of commitment, Often married couples have greater wealth, shared identity and interests, co-habiting have more independence, married= greater investment in childrearing,
s Conflicts:
                A. General Rule: Valid where celebrated, unless strong public policy
                                • “Mini-DOMA” defense of marriage act (defines marriage as one man one woman)- state versions
• Fed “DOMA”- for all federal law purposes, all same-sex marriages are not recognized, expressly authorizes states to withhold marriage recognition                      
                B. Constitutional:
• Full Faith & Credit (& DOMA)- even if it does apply, provides some exit from the full faith and credit… expressly authorizes states to disregard same-sex marriages.
                1. Full Faith and Credit obligation
2. Congress may proscribe the manner and effect given to same-sex marriage, which is zero, nullifying the full faith and credit obligation
                                                                • Due Process/Equal Protection:
                C. Polygamy:
                                • Challenges:
1. Religious Liberty: Laws inhibit religious exercise, entitled you to believe whatever you like about religion but does not entitle you so act on your beliefs. Not so limited view anymore.
                                                2. Privacy:
State v. Holmes: Man wanted to add another wife, didn’t seek to have the second marriage recognized, had approval of first wife, Court said not Ok because it is basically the same thing as being married- violated Utah law. Dissent said the laws should be more narrowly tailored. Marriage, then man wanted to marry a second woman, (his wife’s 16-year-old sister!) In the subsequent marriage, they had a private ceremony in the home for a “celestial marriage”- thought they were dodging- but Utah’s bigamy law prohibits purporting to marry- and it was therefore illegal.
Employment Division v. Smith: free exercise of religion does not protect someone from a neutral applicable law. As long as it does not target or discriminately apply to one group, then ok. First amendment claim rejected on the neat clean ground that you are free to believe as you choose, but you are not free to act.