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Family Law
University of Michigan School of Law
Aviv, Joseph

Joseph Aviv

Family Law

Winter 2013

Contemporary Family Law, 3d Edition – Abrams, Cahn, Ross, and Meyer

I. An Introduction to Family Law

§ Family Law – dealing with people at the worst time of their lives and dealing with people acting badly.

§ Area of most frequent contact between most ordinary people and the courts.

§ There’s no such thing as a private divorce – you have to go to court to get a judgment, which is the divorce.

§ Divorce is tax-motivated. Alimony is deductible to the payor and income to the payee. Child support is not deductible to the payor and is not income to the payee.

§ Constitutional limitations on governmental power over family life.

o Traditionally, domestic relations were considered under the province of the states under the police power.

§ Police power – sovereign power to enact laws to preserve the safety, health, welfare, and morals of the community.

o Marriage is a social relation subject to the states’ police power.

o Federal government – specific grants of power found in the Constitution.

o 10A – reserves police power to the states.

o 5A & 14A – due process clauses. 14A – states can’t deny equal protection of the laws.

o Family life is an aspect of liberty from the due process clause.

o Substantive due process – restricts government from interfering with liberty unless it meets the tests. (Rational basis test)

o Family life ranks as fundamental rights under the constitution, so they require strict scrutiny.

§ Gov must show that the policy was necessary to achieve a compelling state interest.

§ If it proves that, it must also demonstrate that the legislation was narrowly tailored to achieve the intended result.

§ Meyer v. Nebraska

o Liberty as guaranteed by the Constitution includes not even freedom from bodily restraint but also the right of the individual to marry, establish a home, and bring up children.

o State strikes down a statute that prohibits parents from teaching German to children before 8th grade.

§ Pierce v. Society of Sisters (1925)

o SC struck down an Oregon statute that required children between 8-16 to attend public school and not private school.

o Child is not merely a citizen of the state but also those who nurture him are entitled to prepare him for additional obligations.

§ Prince v. Massachusetts

o Custody, care, and nurture of the child resides first in the parents.

o State may overrule decisions made by parents and guardians in order to protect the children.

o Protection of children trumps parents’ rights to make decisions.

§ Griswold v. Connecticut

o Court invoked the emanations and penumbras of the various areas of the Bill of Rights to protect the privacy of married couples to use contraception not withstanding a criminal ban.

o Connecticut law was from 1879. Legal struggle to repeal the law started in the late 1950s.

o 6 opinions issued in Griswold.

o Bill of Rights contains penumbral rights that includes the right of privacy.

o Even if no single amendment standing alone could protect the right of privacy, all of them taken together form a penumbral right of privacy.

o Douglas leaves open the possibility that a ban on manufacture or sale of birth control would be constitutional.

o Adultery is still a crime, and is still grounds for divorce even in states which have no-fault divorce.

§ Eisenstadt expands our understanding of the privacy right.

o If the right of privacy means anything, it is the right of the individual to be free from governmental intrusion into the decision to bear and beget a child.

o In order to handle Griswold as an equal protection case, you could make the argument that the consequences of the statute fall on women and not men.

o There’s a difference in the burden imposed on women and not men in the differences between contraceptive devices.

o This case is important because of the Amendment used – 14A makes it clear that an individual has the same rights whether single or married.

II. Constitutional Marriage Issues

§ Marriage

o Why do people marry in the first place?

o Marriage is a way to express the depth of one’s commitment to another.

o Comply with social norms, parental explanations, religious faith, economic reasons, etc.?

o Could the aims of marriage be achieved just as well if the government got out of the realm of marriage altogether? No governmental regulation?

o Government espouses certain benefits that couldn’t otherwise happen.

o You can obtain almost all of the benefits of marriage without marriage through private pacts.

o A state may void a domestic contract on public policy grounds.

o They’re good for one-on-one relations, but these contracts fall short of that when it deals with 3rd parties associating with the couple.

o By determining who may marry, how they should marry, which obligations and entitlements are required, and whether conditions permit a marriage to end, lawmakers have sought to define and reinforce foundational societal values relating to citizenship, morality, childrearing, gender, and race.

o For much of American history, marriage was primarily valued as an institution that provided important social and communal benefits.

§ The law sometimes steered individuals into marriage as a means of enforcing public norms concerning sexuality.

§ A shift in focus has occurred where marriage is primarily used as a way for adults to be bonded to a chosen partner.

§ The shift has raised expectations about marriage and posed new questions about the propriety of legal standards obstructing personal choice in marriage.

o Another reason for the dissolution of many marriage regulations is that there have been many new constitutional limitations on government power over family life in the past half century.

o Late 19th/early 20th century marked a resurgence – against pioneer times where the strict standards regulating marriage were relaxed for practical purposes – of demand for public control of marriage.

§ Out came anti-miscegenation laws, and many states considered regulating marriage for reasons of eugenics or public health.

§ By the 1930s, more than ⅓ of states had prohibited marriage to persons with epilepsy, VD, tuberculosis, or certain other diseases.

§ States also moved to raise the minimum legal age


o Kennedy quotes his opinion from County of Sacramento v. Lewis and says that history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.

o According to Kennedy, the liberty that is protected here is the right to choose a personal intimate relationship without being charged as a criminal.

o MPC made clear that it did not recommend or provide for criminal penalties for consensual sexual relations conducted in private.

o Court cites to Romer v. Evans wherein Ct struck down class-based legislation directed at homosexuals as a violation of the EPC.

o Kennedy demolishes the key premises supporting the reasoning in Bowers.

§ There’s no longstanding history of discrimination against homosexuality; those are a product of the late 20th century.

§ Bowers asked the wrong question: the question wasn’t homosexual acts but intimate personal relationships.

§ Does society have the right to impose the moral view against homosexuality on the whole nation through criminal law?

o Bowers was eroded by Casey and Romer.

o Drafters of DPC could have been more specific, but they weren’t because they knew that times could blind people to certain truths which later generations can see that laws once thought necessary and proper are being used only to oppress.

o Majority does say that the statute does not fulfill a legitimate state interest, which is the language of rational basis review. However, they do not say that they are using rational basis.

o O’Connor: joins in decision, chooses not to overrule Bowers, makes argument based on EPC instead of DPC.

§ She applies “a more searching form of rational basis review.”

§ She doesn’t retreat from Bowers, but she doesn’t say that it’s rational basis review, so she says it’s something more heightened than that.

§ EPC is invoked to prevent harm to a politically unpopular group.

o Scalia dissent:

§ Majority didn’t define homosexual sodomy as a fundamental right under the DPC nor does it use strict scrutiny which would be appropriate if homosexual sodomy were a fundamental right.

§ When you start with a non-fundamental liberty, as long as you have rational basis, the statute is constitutional.

§ He says the legitimate interest is a shared vision of moral behavior – used all the time in criminal law.

§ If the court did find a fundamental right, it suggests that non-textual fundamental rights can be premised on something other than deeply-rooted historical view of rights.

§ O’Connor’s heightened rational basis review is never used in any other case.