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

Family Law Outline: Professor Purvis Spring 2011
1.       The American Family Today
a.       Why do families matter?
                                                               i.      To meet economic needs (pool resources)
                                                             ii.      To rear/raise/socialize children
                                                           iii.      Provide during sickness and at death (caretaking)
                                                           iv.      Fulfill relationship needs (emotional, sexual)
                                                             v.      Basic building block of society (fundamental unit)
                                                           vi.      Household unit (of regulation)
b.       Why does marriage matter?
                                                               i.      Strong social norm (stigma about non-marriage)
                                                             ii.      Public statement (expressive value)
                                                           iii.      Division of labor in marriage (evolving, not as gender biased, both parents working, etc)
                                                           iv.      A source of benefits from government (and employment benefits)
                                                             v.      Marriage is a way of controlling sexuality
                                                           vi.      Social science claims – that children better off if reared by 2 married parents
                                                         vii.      Marriage joins families
c.        Transformative Change: structure of family has changed dramatically over the past century as individuals live longer, marry later, and have fewer children. Changes in response to the way people live
                                                               i.      General – Movement towards a view that family exists for the benefit of the individual, rather than the individual existing for the benefit of the family
                                                             ii.      Competing Models of Marriage are at odds in today’s family debates:
1.       The Conjugal View (older view)
a.       Child-centered, views marriage as a sexual union between H and W who promise each other sexual fidelity, mutual caretaking, and joint parenting
2.       The Close Relationship Model (recent view)
a.       Marriage is a private relationship between 2 people created primarily to satisfy needs of adults – marriage and children is not seen as intrinsically connected
d.       The Traditional Family – regarding marriage and the traditional family unit as a basic social institution
                                                               i.      Marriage was primary support institution and determinant social, economic, and legal status spouses and children;
                                                             ii.      Marriage in principle was to last until the death of a spouse, and terminated during the lives only for serious cause;
                                                           iii.      The community aspect of marriage and the family were emphasized over individual members
                                                           iv.      Within the family, the standard pattern of authority and role allocation was the H was predominant in decision-making and was to provide for the material needs of the family, while W cared for the household and the children;
                                                             v.      Procreation and child rearing were assumed to be major purposes of marriage
e.        The Nontraditional Family
                                                               i.      Move towards a system with demands for autonomy and privacy.
                                                             ii.      Marriage is no longer sufficient model to respond to the variety of relationships that exist today à Personal adult relationships could benefit from alternative legal frameworks to support people’s need for certainty and stability
                                                           iii.      Concept includes:
1.       Nonmarital cohabitation
2.       Domestic partnership
3.       Same sex marriages
4.       De facto marriage
5.       Marriage by estoppel
6.       Paternity and legitimacy issues
7.       Single parent adoption
8.       Homosexual parent adoption
f.        Trends In Family Law
                                                               i.      Reproductive Technology (surrogate moms, in vitro, AI)
                                                             ii.      Changed gender roles – increased neutrality
                                                           iii.      Woman began entering work force
                                                           iv.      Ready availability of no-fault divorce
                                                             v.      Changing sexual mores: Less pressure to conform to standard heterosexual couple norm
                                                           vi.      Wider acceptance of single parenthood and unmarried couples having children
                                                         vii.      Advances in health care: less infant mortality and longer life expectancy
                                                       viii.      Changing economics, family is a unit of consumption not production
                                                           ix.      Pe-nuptual agreements
                                                             x.      People are having less children
                                                           xi.      People getting married older
g.       Proponents of Change (Coontz): changes in family are beneficial b/c recognizes autonomy of family members
h.       Reservations about change (Council of Family Law): Trend away from traditional marriage is detrimental to society. Protecting children should be the focus and cohabitation threatens this.
                                                               i.      Cohabitation is less stable for children then marriage
                                                             ii.      Denies state legitimate and serious interest in marriage
                                                           iii.      Clashing models of marriage
2.       Constitutionalization of Family Law
                                                               i.      Right to privacy & Equal Protection
a.       Rational Basis Test:
                                                               i.      If law does NOT discriminate on basis of ‘suspect classification’ or deprives a ‘fundamental’ right
                                                             ii.      P must prove that the law is not rationally related to a legitimate state interest
b.       Strict Scrutiny Test:
                                                               i.      If law DOES discriminate on basis of ‘suspect classification’ or deprives a ‘fundamental’ right
                                                             ii.      D must prove that law is ‘narrowly tailored’ to achieve a ‘compelling’ state interest
c.        Intermediate Scrutiny
                                                   i.      Based on gender of illegitimate status of a nonmarital child – government may overcome the presumption of unconstitutionality by carrying the somewhat lesser burden of establishing that the classification is substantially related to the achievement of an important state interest
d.       Presumption of Constitutionality – changes based on level of scrutiny and depends on who has the burden
                                                               i.      RB: P has burden, presumption of constitutionality
                                                           iii.      SS: Government has burden, presumption of unconstitutionality
e.        Public Law – By deciding what groups constitute a family, the law has a significant impact on different familial structures
                                                               i.      Moore v. City of East Cleveland (SCOTUS 1977) – Court recognized a fundamental right in an extended family’s decision to live together in a common home. D lived with her son and 2 grandsons (cousins) in East Cleveland. The EC housing ordinance limited occupancy of dwelling units to members of a single family, one of the grandsons did not qualify as family because his parent did not live with them. D was convicted of crime.
1.       Holding: Due process Violation– fundamental right of freedom of autonomy or choice in family living. The stated objectives of limited crowding, traffic congestion and undue financial burden are not important enough for this type of limitation. The strong constitutional protection of the sanctity of family extends beyond the limits of a nuclear family.
2.       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 fundamental right
3.       à Court recognizes family diversity and that the nuclear family is not the only protected form of family. The tradition of extending family sharing a household “has roots equally venerable and equally deserving of constitutional recognition” as the nuclear family.
4.       Type of Scrutiny:
a.       Crt is ambiguous, appears to be a strict scrutiny
b.       Crt says the law excludes too many groups, can’t narrowly define family so much
c.        B/c encroaches on a fundamental right, law must be narrowly tailored to achieve a ‘compelling’ state interest
                                                             ii.      Reasons to protect the family: Families bond together for economic necessity, for mutual sustenance, to “draw together and participate in the duties and satisfaction of a common home,” and to share in the responsibilities of rearing children
f.        Evolution of the Right to Privacy
                                                           iii.      General: Family law regulated by states, BUT state’s rights to regulate is subject to constitutional limitations
                                                           iv.      Roots of Rights to Privacy within a Family: 3 cases
5.       Meyer – SCOTUS 1923 – SC struck down a statute that barred teaching German to children who had not yet reached 8th Grade. Court said that liberty interest protected by the DPC of the 14th Amendment includes the right of parents “to control the education of their own children.”
6.       Pierce – SCOTUS 1925 – SC overturned an OR statute that provided that parents could satisfy the state’s compulsory education law only by enrolling their children in public schools. Ct. held that the statute “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right” to give him such obligations
7.       Prince – SCOTUS 1944 – Prince, a Jahova’s Witness, had her 9 year old daughter assist her in preaching on city streets and was charged with violating child labor laws. The Ct. upheld the MA statute’s constitutionality, stating that parental authority is not absolute and can be permissibly restricted in the interests of child welfare. Court decided

y have opened the door to the constitutionality of prohibiting same-sex marriage
                                                             ii.      Lawrence v. Texas (SCOTUS 2003) – said criminalizing homosexual conduct violated the constitution. Majority and O’Connor said this did not apply to marriage. However, Scalia said if its based on moral components, then cannot limit marriage to heterosexual couples either
1.       Holding: SCOTUS overturned the statute, holding that making it a crime for two persons to engage in intimate sexual activity violates the DP Clause. “The statute furthers no legitimate state interest that can justify its intrusion into personal and private life of the individual.”
2.       Concurrence, O’Connor: The statute should be overturned on EP grounds. It is wrong to single out a group for criminal punishment based on mere moral disapproval. Says must apply a more “searching form of rational basis review” when desire to harm politically unpopular group
3.       Dissent, Scalia: there seems to be no rational justification for denying access to marriage to same-sex couples if you accept the majority’s premises. Also, this is the end of all morals legislation, including criminal laws prohibiting “fortification, bigamy, adultery, adult incest, bestiality, and obscenity”
                                                           iii.      OPEN QUESTIONS LEFT UNANSWERED
1.       Is gay marriage legal? Majority, O’Connor all say that no requirement that same-sex marriage be recognized. Kennedy distinguishes b/w private conduct b/w 2 consenting adults and formal – state public recognition that would occur if same-sex marriage was admitted.
                                                           iv.      Impact of Lawrence:
1.       Morality is no longer a sufficient reason to legislate against behavior
2.       Right to privacy encompasses “non-procreative sexual activity”
c.        Emerging State Law Litigation concerning Same-Sex Marriage:
                                                               i.      Baker v. Nelson: marriage is “inherently” 1 man and 1 woman, no need to explain why constitutional
                                                             ii.      Bair v. Mike – 1st case litigated, in HI, lobbying for same-sex marriage. Argue fundamental right to marriage, but HI state court rejects Fundamental Right argument. However, the court did say there was a classification based on sex, and therefore required a heightened scrutiny.
1.       Before the HI supreme court hears the case, referendum passed – marriage is between one 1 and 1 woman
2.       This case triggers a huge political backlash à and brought us to Goodridge
                                                           iii.      Goodrich v. Dep’t of Public Health (Massachusetts case) – 1st to allow Same-Sex Marriage
1.       Majority – says that MA statute not allowing marriage license for same-sex couples is UNCONSTITUTIONAL. Fails rational basis test DP and EP (no legitimate purpose)
a.       Procreation – No, marriage is based on commitment, not procreation
b.       Optimal setting for child rearing – Restricting Marriage to opposite-sex couples does not further state interest in protecting the welfare of children – Actually hurts because does not allow children of same-sex couples the stability offered to opposite sex couples
                                                                                                                                       i.      Same-sex couples just as capable
c.        Conserve Financial Resource – (State argues that same sex couples are more financially independent than opposite sex couples) An absolute statutory ban on same-sex marriage bears no relationship to the goal of economy
                                                                                                                                       i.      BUT nothing in the marriage laws is premised on conserving resources, DO not ask couples if they are financially dependent on each other (this is not a requirement)
2.       Dissent – privacy may be intimate association, but different when asking government to sanction it
a.       EP not appealing b/c applies across the board to men and women, AND no specific intent to oppress a specific group
b.       Also concerned with regulation of heterosexual behavior that marriage offers – more specifically accidental creation of family
                                                                                                                                       i.      Concerned with inherent risk of heterosexual relationships that produce children out of wedlock, marriage regulates this