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Family Law
University of Maine School of Law
Stout, Elizabeth F.

Family Law Stout Spring 2018
Foundations: Constitutional Issues
Due Process Clause (Protects Life, Liberty and Property)
Substantive due Process (not procedural)
The line between, on the one hand, acts by persons of a public or private nature that courts hold are subject to public regulations or legislation, and on the other hand, acts that courts place beyond the reach of governmental interference
Marriage a right?  Yes
Four principles (Obergefell v. Hodges)
(1) the right to choose whether and whom to marry is “inherent in the concept of individual autonomy”; see Loving
(2) the right serves relationships that are equal in importance to all who enter them;
(3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing; and
(4) lastly, marriage is the very “keystone of our social order” and foundation of the family unit.
Griswold v. Connecticut [Marriage Privacy Gets Protection]:
Take Away: The “Birth of Privacy” / Marriage privacy gets protection
Facts: Doctor and Executive director were fined $100 each for distributing birth control a to a married couple. Claimed a violation of the Due Process Clause of the 14th Amendment.
Rule of Law: An implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception.
“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”
Douglas Opinion: fundamental right is the “right to privacy,” which her derives from penumbras from the emanations of provisions enumerated in the bill of rights
From where does the majority develop this right of privacy?
A “right of privacy” protecting the intimate relations of married couples is implied in the Bill of Rights.
The protected activities in each of these Amendments are “penumbras” that are not specifically enumerated in the Constitution, but instead represent various “zones of privacy” into which the government cannot intrude.
The marital relationship is located within a “zone of privacy” impliedly created by these various fundamental constitutional guarantees in the Bill of Rights.
Critique: Douglas is just stretching other provisions within the bill of rights; this approach has not been followed; the “right to privacy” is too broad; reinterprets Meyer and Pierce, which were clearly SDP cases
Goldberg Concurrence: The right to privacy is found within the Ninth Amendment, which guarantees that the express enumeration of rights within the bill of rights does not limit the rights reserved to the people
Critique: no guidance as to what those rights are; there is very little precedent interpreting the Ninth Amendment
Harlan Concurrence: This is a substantive due process issue, the right to privacy is a liberty protected by the DPC of the Fourteenth Amendment
In determining what constitutes a fundamental right, Harlan looks to concepts of “ordered liberty”—e., ingrained notions within society
Black/Stewart dissents: acknowledge that the law is not a good one, but that the proper solution is for the legislative process to fix it. (this is a common critique conservative jurists often have in SDP cases)
Equal Protection:
At issue when similarly situated people are treated differently.
Strict Scrutiny – Impairment of “fundamental rights” requires “strict scrutiny”. A challenged statute must be narrowed tailored to serve a compelling government interest and must not have a less restrictive alternative.
“fundamental rights” – Procreation, marriage, raising and education of children are all fundamental rights.
Eisenstadt v. Baird [Privacy Rights Extended to Unmarried Persons]: 
Rule of Law: Under the Equal Protection Clause of the Fourteenth Amendment, a state may not outlaw distribution of contraception to unmarried persons.
Facts: Baird convicted at a bench trial in Mass Superior of exhibiting contraceptive articles while giving a talk about contraception at BU and for handing a young women foam at the end of the talk. Set aside conviction of displaying the materials as a first amendment right but sustained the foam. Issue was that he gave it to a non-married women.
Issue: Is there a rational reason to treat married and non-married women differently?
The purpose of the Mass Law cannot be to deter pre-marital sex
Law can’t be to protect health because marital status does not mean that one person should be protected from health concerns more than another.
Rights need to be afforded to married and unmarried alike. This is the right of an individual- married or single.
Violation of the Equal Protection Clause.
Builds on Griswold: Right of privacy is the right to the individual, not of the couple, to be free from unwarranted intrusion. Did not reach Due Process issues
Loving v. Virginia, [Privacy Rights Extended to Interracial Marriage] Take away:
Marriage is a fundamental right.  This is bedrock of case that follow.
Equal protection: EP clause “demands” that racial classifications be subject to the “most rigid scrutiny”
Rule of Law – A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Facts: The Lovings were indicted for violating the Virginia law that banned interracial marriage
Virginia’s statute is motivated solely to restrict marriage based on race, and by precedent, such laws have been found to be a threat to equality.
At the very least such race-based classifications are subject to strict scrutiny and cannot be upheld unless they are shown to accomplish a permissible state objective independent of the racial discrimination.
Virginia seeks to uphold its interracial marriage ban on the grounds that it furthers a legitimate state purpose of preserving racial integrity and preserving racial pride.
there is no legitimate overriding purpose independent of invidious racial discrimination that justifies Virginia’s classification.
Note – Virginia also argues that the regulation of marriage has traditionally been left to the states under the Tenth Amendment.  
Windsor v. U.S
Take Away:  the Fed can't define what marriage is.  That is the job for states to do. (but can define it in some case,  ie shame green card marriages.)
Rule of Law: A federal statute excluding same-sex couples from the definition of marriage for purposes of federal benefits is unconstitutional.
Facts:  Same sex couple was married in Canada. New York, which recognized the marriage but the Fed did not for taxes.
Though Congress may enact laws that impact marriage, regulation of marriage is within states’ exclusive power over domestic relations, subject to constitutional limits.
Marriage was historically understood as a union between opposite-sex couples, but many now see this limitation as unjust.
Eleven states have legalized same-sex marriage.
DOMA “departs from th[e]…tradition of reliance on state law to define marriage.”
The federal government denies equal treatment to a group New York deems equal in status to opposite-sex married couples.
This violates equal protection and due process.
Obergefell v. Hodges
Take Away: 
Substantive due process: You have the liberty rights to marry  And these liberty rights are protected.
Equal protection: being gay is an immutable characteristic and like race. 
Both require strict scrutiny
Rule of Law – Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples
Is a state required to recognize a marriage validly performed in another state, even if that state does not permit same sex marriage?
Is a state required by the 14th amendment to issue a marriage license to person of the same sex?
(1) Does the 14th amendment require a state to license a marriage between two people of the same sex.
The answer is yes. – Marriage is a fundamental right protected by the Due Process Clause.
(2) Refusing to allow same-sex couples to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, child custody and support, etc.
In this instance, the liberty interest protected by due process intersects with the right to equal protection, and same-sex marriage ban

Grishman v. Grishman (MAINE CASE) [application of unmarried cohabitants to Maine] Take Away – Martial Property is only property acquired during the marriage.  But courts will make sure women get their “fair” share
Blumenthal v. Brewer [same sex unmarried cohabitants] Take Away – To have the protection of marriage, you need to be married.
Facts: Couple wanted to be treated as if they were married for the division of property during a divorce.
Holding- no common law marriage in Illinois.  If you wanted the protection from marriage, you should have gotten married even if you are a same sex couple.
Note – they really could not have gotten married before this because they were gay.
Getting Married: Substantive, Procedural, and Constitutional Restrictions
Zablocki v. Redhail – [economic class] Rule of Law – The right to marry is a fundamental right, and any legislative attempts by a state to limit that right are unconstitutional unless they are narrowly-tailored to the accomplishment of an important governmental purpose.
A Wisconsin statute prevented members of a certain class of residents from marrying without first obtaining a court order granting them permission to marry.
This class was defined by the statute to include any Wisconsin resident required by court order or judgment to pay child support to a minor that was not in his custody.
Reasonable regulations that do not actually interfere with the ability of a person to marry are not subject to strict scrutiny and can be legitimately imposed.
The Wisconsin law clearly and absolutely interferes with Redhail’s right to marry on the grounds that he can likely never attain the financial means to fulfill his child support obligations and thus receive a court order granting him permission to marry.
Applying strict scrutiny (or was it middle scrutiny) the Wisconsin statute can be upheld only if it is supported by sufficiently important state interests and closely tailored to accomplish those interests exclusively.
Despite the fact that Wisconsin offered important state interests as justification for the statute (i.e. counseling Redhail about his support obligations and ensuring out-of-custody children are financially supported), the statute itself is not closely tailored to accomplishing these interests and is unconstitutional.
Numerous, less discriminatory means exist by which the Court may compel delinquent persons to fulfill child support obligations.
Note – court said that strict scrutiny is not needed but applied it anyway.
Moe v. Dinkins – [conflict between parents’ rights and child’s right to marry] Take away: “…the State’s power to make adjustments in the constitutional rights of minors.”
Rule of Law – A state statute requiring parental consent before a minor may legally marry does not violate the Due Process Clause of the Fourteenth Amendment.
Facts: Under age couple wanted to marry, but mother said no.
State has the right to make adjustments in the constitutional rights of minors. State’s interests are legitimate under its parens patriae – therefore not strict scrutiny.
The provision is rationally related to the state’s legitimate interest in light of a minor’s lack of experience, perspective, and judgment necessary to make important and life-changing decisions.
The statutes are not arbitrary or capricious and merely delay the time at which a minor may enter into marriage.