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Family Law
University of North Carolina School of Law
Lau, Holning S.

Lau Family Law Fall 2011

A. Functions of Family Law

1. Protective à Protect citizens a/g harms done them by other citizens

2. Facilitative à Help people organize their lives and affairs in the ways they prefer

3. Arbitral à Help people resolve disputes

4. Expressive à Provides citizens w/ a voice and ability to alter the behavior of people the law addresses

5. Channeling à Creates and supports social institutions which are thought to serve desirable ends

· Promotes marriage – monogamous, heterosexual, permanent, based on love

· Promotes parenthood – parents are married & biological parents of child; authority over children; support and nurture children thru stable home

B. Evolution of the Right to Privacy

1. Birth of Privacy

a. Roots of privacy: cases in which S. Ct. expresses an understanding of the family that establishes underpinnings to the right to privacy; cases include dicta establishing parental autonomy and extending substantive due process found in const protection of personal “liberty” to limit the authority of gov to interfere in certain family matters

a. Meyer v NE (US 1923): statute prohibits any person from teaching lang other than English unless pupil who successfully completed 8th grade, and violation is misdemeanor. P, an instructor, taught reading in German to child who had not yet passed 8th grade.

§ Issue: Whether statute as construed and applied unreasonably infringes liberty guaranteed to p by 14th amend.

§ Standard: Mix b/w rational basis (RB) and strict scrutiny (SS)à liberty may not be interfered w/ under guise of protecting public interest by legislative action which is arbitrary and w/out reasonable relation to some purpose w/in competency of state to effect. Legislature’s determination of what is proper exercise of police power is subject to supervision by the const.

§ Holding and rationale: Violation of DPC to bar teaching of foreign languages (German) to children who hadn’t yet completed 8th grade. Instructor has right to teach/parents have right to engage him to instruct their children w/ in the liberty of 14th amend. A desirable purpose of the legislation, to promote civic development by inhibiting training in foreign lang/ideals before learn English and acquire American ideals, cannot be coerced by methods in conflict w/ the const: materially interfering w/ calling of modern lang teachers, w/ opportunities of pupils to acquire knowledge, and w/ power of parents to control their children’s education.

· Substantive DP à Parent’s rights to control the education of their children

· Legislation has desirable purpose but does not justify infringement on rights long freely enjoyed; thus, conclude statute arbitrary and w/ out reasonable relation to end w/ in competency of state

· Pierce v Society of Sisters (US 1925)

a. Standard: Mix b/w RB “rights guaranteed by const may not be abridged by legislation that has no reasonable relation to some purpose w/in competency of state” and SS

b. Rule: Mandatory public school education violates DPC of 14th Amend.

ú Violates right to operate a school as property interest

ú Also unreasonably interferes w/ parents’ right to direct their children’s upbringing

· State may require school but has no power to standardize children by requiring public school instruction

· Meyer and Pierce establish the const doctrine of family privacy; both hold that parents have const right to the care and custody of their children

b. Explicit recognition of right to privacy: Griswold and Eisenstadt explicitly recognize a const right to privacy

a. Griswold v CT (US 1965): statute prohibits any person from using “any drug, medicinal article or instrument for the purpose of preventing conception” or form aiding and abetting another to use contraceptive devices. Statute epitomizes most stringent state laws by prohibiting use rather than merely distribution of contraceptives and by not providing exclusion for women whose lives would be endangered by pregnancy. G, director of PP which provides info about contraception/contraceptives to married persons and medical director charged w/ violating “aiding and abetting” provision of statute. Argue that statute violates their married patient’s 14th amend right to privacy.

a. Standard: Higher than RB

§ Holding/ rationale: Statute is unconst. interference w/ right of marital privacy. Right to marital privacy is found in penumbras formed by emanations from specific guarantees in Bill of Rights that help give them life and substance. These guarantees create “zones of privacy.” This case concerns relationship, the marital relationship, which lies w/in zone of privacy created by several fund const guarantees such as 1st amend right of association and right to privacy in one’s associations. Statute cannot stand in light of principle that “Gov purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade area of protected freedoms.” Thus, statutory prohibition on use of contraceptives (rather than their manufacture or sale) infringes on marital privacy b/c enforcement would necessitate searches of bedrooms, invading protected freedom of marital association/privacy of marital relationship.

· Marital right to privacy falls w/in the penumbras of Bill of Rights; thus, marital right to privacy, although not explicitly mentioned in the const, has const basis in the penumbras of Bill of Rights that give those guarantees life/substance

· Difference b/w economic regulations and the regulation of INTIMATE affairs of people, marital privacy

· Fundamental right: Griswold points out that the right to privacy is fundamental (const doctrine accords fund rights strict scrutiny review, i.e., restrictions on those rights must be necessary to a compelling state interest) à Goldberg concurrence: marital privacy is a basic and fundamental right deeply rooted in our society

§ Concurrence: Goldberg locates const right to privacy in the 9th amend. pointing out that it was intended to grant to ppl those essential rights not specifically enumerated in bill of rights

§ Dissent: Black and Stewart cannot find general right of privacy in Bill of Rights, any other p

l Birth Abortion Ban Act bans form of late term abortion physicians call intact dilation and evacuation

a. Standard: SS

b. Holding/rationale: S. Ct. upholds Congress’s ban on partial-birth abortions. Assumes principles that before viability, state may not prohibit any woman from making ultimate decisions to terminate her preg, may not impose upon this right an undue burden (which exists if regulation’s purpose or effect is to place substantial obstacle in path of woman seeking abortion before viability), and regulations which create structural mechanism by which state/parent may express respect for life permitted if not substantial obstacle to woman’s exercise of right to choose.

ú Act’s prohibition on intact D&E procedure not void for vagueness on its faceà statutory definition of unlawful abortion as delivery of living fetus to one of 2 anatomical landmarks establishes suff guidelines to govern law enforcement, and the scienter requirement (“knowingly performs”) limits prosecutorial discretion

ú Prohibition does not sweep too broadly to include prototypical 2nd trimester D&Es in which fetus is removed from uterus in pieces, and thus does not impose undue burden on 2nd trimester abortions based on overbreadth

ú Legit and substantial state interest in preserving/promoting fetal life and protecting women are furthered by the enactment of the ban. State’s interest in ensuring that woman’s choice is well informed is also supported by banà it prevents women who discover details of procedure from struggling w/ more anguished grief than those who generally regret choice of abortion

ú Act not invalid b/c of absence of health exception à uncertainty in medical community regarding whether barred procedure is ever necessary to preserve woman’s health given availability of other abortion procedures considered to be safe alternatives

c. Result: Gets rid of trimester system; Entrenches “undue burden” test àundue burden standard can still render some abortion restriction unconst

2. The Liberation of Privacy

· Lawrence v Texas (US 2003)

a. Standard: most cts view it as adopting RB review, but there are some significant outliers, like 9th circuit. Forces pulling in both RB and heightened scrutiny/SS directions. There are facts that push to rational basis review: ct here saying deciding case based on subst DPC. Ct never explicitly says fund right at stake here, but keeps analogizing to fund rights cases like Griswold. Ct never says words fund right, strict scrutiny, or heightened scrutiny.