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Family Law
University of North Carolina School of Law
Eichner, Maxine

Family Law Spring 2010 Outline



I. Overview of Family Law:

a. In Generalà Family law is state law (balkanized); federal courts abstain from dealing with family law issues. However, this is changing. Congress has used “power of the purse” to get states to adopt certain uniform measures (child support, etc). Supreme Court has constitutionalized some family issues (right to privacy); 10th Amendment (powers not delegated to the United States are reserved to the states respectively or to the people).

II. Does the State have an Interest in Privileging (Particular) Families?

a. What is a family?

i. Traditional family model? (“conjugal view”)

ii. Blood Relationship?

iii. Functional Family?

iv. Intent to be Interdependent? (Close relationship model; satisfying needs of adults).

b. State Privileges Given to Families:

i. Tax Benefits

ii. Health-care Benefits

iii. Standing to sue for “wrongful death”

iv. Intestacy rights.

III. What Place (if any) Should Marriage have in Family Law?

a. Separation of Marriage and State? à Some argue for the “disestablishment” of marriage, or getting the state out of the marriage business because of irresolvable cultural and political clashes.

i. Howeverà this approach denies the state’s legitimate interest in marriage as our most important child-protecting social institution and as an institution that helps protect and sustain liberal democracy.

IV. What Place Should Morality have in Family Law?

a. (See Lawrence v. Texas)


I. Privileging Traditional Families

a. In Generalà Under “rational basis review,” it is legitimate and permissible for state legislatures to “privilege” certain traditional family units. However, courts will look to “history and tradition” in extending the definition of a family.

II. Exampleà Upholding zoning ordinance restricting land-use to single “one-family” dwellings

a. Ordinance that bears a “rational relationship” to permissible state objectives. This ordinance only affected unrelated individuals.

Village of Belle Terre v. Borass (1974): Town had ordinance that restricted land to one-family dwellings, excluding lodging houses, fraternities. The word “family” is defined as: “One or more persons related by blood, adoption, marriage living and cooking together as a single housekeeping unit. A number of persons but not exceeding two living and cooking together as a single housekeeping unit though unrelated by blood shall be deemed a family.” Six students lived in the neighborhood and were served with a citation. Tenants brought suit for an injunction against the ordinance as unconstitutional. HOLDINGà Douglas upholds ordinance as constitutional. It is NOT aimed at transients, it involves no “fundamental right,” but is aimed at a permissible state objectives: quiet street, fewer vehicles, wide yards, etc. The ordinance does NOT involve procedural disparities inflicted on some but not on others, so there is NO violation of right of association, right of access to courts, right to privacy etc. DISSENTà Marshall believes this ordinance interferes with right of association and right to privacy. Ordinance is both overinclusive and underinclusive. Marshall is NOT saying that the town cannot regulate density or noise, but Marshall wants them to regulate it without infringing on individual rights to privacy. Don’t use the family as a “proxy” for regulating things like noise, traffic, etc.

III. Exampleà Striking down family-use ordinance b/c definition of “family” is too restrictive

a. In contrast to Belle Terreà this ordinance attempts to regulate occupancy by slicing deeply into the family itself and selects certain categories of relatives who may live together.

i. Matters of marriage and choices in family life are liberties protected by the Due Process Clause of the 14th Amendment.

Moore v. City of East Cleveland (1977): East Cleveland has a housing ordinance that limits occupancy of a dwelling to members of a single family and involves an unusual and complicated definition of “family” as meaning a number of people related to the head of the household or spouse of the head of household and children of the same. A family may include not more than one dependent married or unmarried child of the head of household. Moore is a grandmother that lives with her son and two grandsons. Moore was charged, convicted and sentenced to five days in jail and a $25 fine. ISSUEà Whether the ordinance violates the Due Process clause of the Fourteenth Amendment? HOLDINGà Ordinance violates the Due Process Clause of the Fourteenth Amendment because it cuts too deeply into the family itself by trying to regulate the categories of relatives who may live together. When a city undertakes such intrusive regulation of the family, the usual judicial deference is NOT appropriate. Moore’s arrangement is a “family”


i. No history or tradition supports this non-textual right outside of marriage!

ii. In Griswoldà The court rests on the “sacred” nature of marriage relationship which is entitled to privacy.

iii. In Eisenstadtà The court is more interested in “individual rights” and autonomy as being the basis of the right to privacy.

1. However, how far this should go is unclear. Court seems to be concerned that unmarried couples are being treated differently than married couples. But, there are tons of rights given to married couples that are NOT given to unmarried couples.


I. Lawrence v. Texas (2003) à reaffirms constitutional protection of non-textual “right to privacy” and holds that states may not prohibit private consensual sexual activity between consenting adults of the same sex. Sexuality is fundamental aspect of “personhood”

a. Lawrence expressly overrules Bowers v. Hardwick (1986)

i. In Bowersà court ruled that the right to privacy does NOT protect a right to engage in private consensual sodomy (Georgia law applied to both homo and hetero sex)

1. Bowersà held that “right to privacy” only pertained to matters of family, marriage, and reproduction which did NOT fit with homosexual activity.

a. Originalistsà Court should protect rights as “Fundamental” only if they are supported by:

i. the Constitution’s text, the framer’s intent, or a tradition of being safeguarded.

b. Lawrence v. Texasà Kennedy’s Majority Opinion:

i. Kennedy argues that the “liberty” protected by the Due Process Clause of the 14th Amendment extends to consensual homosexual activity and expressions of sexuality.

1. “History and tradition are the starting point, but NOT the ending point in the substantive due process inquiry.”

a. Kennedy rejects originalismà Text, Intent, Tradition are NOT dispositive because our notions of liberty do change