Select Page

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

Family law

Fall 2013

Professor Holing Lau


a. Parents:

a. Meyer v. NE (US 1923)

§ Standard: Mix b/w RB and SS

§ RULE: Violation of DPC to bar teaching of foreign languages (German) to children who hadn’t yet completed 8th grade

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

· No rational state interest – doesn’t promote assimilation or civic development

· Pierce v. Society of Sisters (US 1925)

a. Standard: Mix b/w RB 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 violates parents’ right to direct their children’s upbringing

· Can require school but not public school

b. Sexuality:

a. Griswold v. CT (US 1965)

c. Standard: Higher than RB

§ RULE: Right of married couple to use contraceptives is protected by the DPC of the 14th Amend. under right to privacy

· Family relations fall w/in the penumbras of Bill of Rights

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

b. Eisenstaedt v. Baird (US 1972)

§ Standard: R/B – Looked for rational reason state divided groups

§ RULE: Extends Griswold right to privacy to unmarried consenting adults

· It violates EPC to allow married persons to use contraceptives while banning single persons from obtaining or using them.

· Law was overbroad and discriminatory – did nothing to prevent premarital sex or improve health

d. “If the right to privacy means anything, it’s the right to the individual, married or single, to be free from govt’l intrusion into matters so fundamentally affecting a person as the decision whether or not to bear children.”


a. Abortion is a Private Choice:

· Roe v. Wade (US 1973)

a. Standard: SS – need compelling state interest that’s narrowly tailored

ú In determining if a statute restricting right to abortion is constitutional, apply SS unless mother’s health is at risk

b. RULE: Right to privacy to make a decision in child bearing but it’s qualified. Okay unless it places an undue burden on obtaining abortion.

ú 14th Amend. à DPC rights to marriage, procreation, contraception, child rearing and education

· Are broad enough to include right to terminate a pregnancy (but this right is NOT absolute)

ú Statutes regulating abortion must allow:

· DR’s to make decision on abortion until the end of 1st trimester

· State regulation of abortion in ways related to maternal health after end of 1st trimester (state interest in mother’s life)

· States to ban abortions after viability except when necessary to protect life or health of mother (state interest in child’s life)

· Gonzales v. Carhart (US 2007)

a. Standard: SS

b. RULE: Upholds Congress’s ban on partial-birth abortions

ú Not a substantial obstacle to abortion or undue burden

· There are other methods besides this

ú State interest in respecting fetal life and protecting women

c. UPSHOT: Gets rid of trimester system; Entrenches “undue burden” test

2. The Liberation of Privacy

· Lawrence v. Texas (US 2003)

a. Standard: RB with teeth

b. RULE: Violation of DPC of 14th to criminalize consensual adult sodomy.

ú Establishes right to private, consensual adult sexual conduct

· Important how the Court framed the right

· Right for adults in own home, to make adult decisions

ú Moral disapproval alone ≠ rational purpose for state regulation

· Maybe more than just that – moral disapproval + discrimination is the problem

c. O’Connor Concurring: Finds the same but on EPC grounds

d. Scalia Dissenting: Thinks majoritarian morality is a legitimate state interest b/c if not, you can’t ban ANY sort of law defining marriage


a. Most courts interpret Lawrence NARROWLY!

ú Only takes a slightly greater state interest than morality to jump the RB w/ teeth hurdle

ú Can use Lawrence multiple ways:

· Sex positive case – Liberty of making sexual decisions

· Sex relationship case – boundary b/w public and private conduct

b. Sex Toys – Circuit Split

ú 11th Cir à Liberty interest isn’t the same as Lawrence

· Doesn’t ban use but the sale and distribution

ú Most courts aren’t as restrictive as 11th Cir.’s interpretation

c. Fornication

ú CA has held laws against fornication to be unconstitutional b/c of privacy interest

ú BUT – could counter by saying there is an interest in protecting health and prevent unwanted pregnancy (a weak argument)

d. Cohabitation

ú NC Cohabitation law is unconstitutional

NC SC used r/b test à morality alone isn’t enough, no other govt interest


A. Premarital Contracts

1. Premarital Agreements vs. Other Agreements

a. Different from Ordinary Ks

o Ordinary Ks are done at arms-length

o B/c of state’s heightened interest in marriage à stricter requirements

§ Fairness (as distinguished from ordinary Ks where parties are expected to look out for their own interests)

§ Change in circumstance à may be a/g public policy, enforcement unwise or unfair so courts will intervene where equitable

b. Ks during marriage

o Traditional view à Parties CANNOT change state-imposed rights and responsibilities of marriage (e.g., duty of support, to provide services)

o Modern à Courts are more willing to permit the parties to regulate FINANCIAL aspects of th

es EPC: Denies EP

· Even tho state argues it was equal application to both races –

· Equal application is problematic if it reinforces hierarchy (here it elevates whites)

2. Delinquents/Prisoners

· Zablocki v. Redhail (US 1978)

a. Standard: SS b/c of fund. right to marry

b. RULE: Statute preventing noncustodial parents w/ court-ordered support obligations from marrying w/o a court order is violation of EPC and DPC

ú Important state interest but not closely tailored – doesn’t get child money, doesn’t prevent parent from having more children, new spouse could put parent in a better financial position

· Turner v. Safley (US 1987)

a. Standard: Used RB – but no need to go higher b/c it can’t even pass RB

b. RULE: Prisoners retain their right to marriage

ú State has legitimate goals but getting Superintendent’s permission it’s not reasonably connected to those goals

· Security à regulation is an exaggerated response

· Rehabilitation à not reasonably related

ú Doesn’t prevent restrictions of prisoners’ marriage for goals that are reasonably related; these here weren’t though.

· Doe v. Coughlin (NY 1987)

a. Standard: RB

b. RULE: Prison officials refusing to allow a man w/ AIDS to have conjugal visits DOES NOT violate DPC

ú Inmate’s condition provided RB to prevent conjugal visits

3. Same-Sex Marriages

· Traditional Rule/Majority:

a. J.x. refuse to recognize same-sex marriages

b. Defense of Marriage Act (DOMA) of 1996

ú Congress passed law that no state must recognize a same-sex marriage from another state

ú So far has w/stood Constitutional challenges

c. Statewide Marriage Prohibitions

ú 29 States w/ const’l amends. restricting marriage to man/woman

ú 12 States w/ statutes restricting marriage to man/woman (NC)

ú 18 States (in addition) with laws restricting other legal relationships such as civil unions or domestic partnerships

d. Rationale:

ú Procreation

ú Protects health/welfare of children

ú Children need 2 parents of opposite sex for well-being

ú State has interest in fostering and facilitating traditional family

ú Tradition: Canon law and scripture define marriage as heterosexual