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

Professor Eichner Family Law Fall 2014

Introduction: The Purposes of Family Law, Defining Family, and the Right to Privacy

I. Purposes/Goals of Family Law

A. Protective

1. Protect individuals from harm by others, financial harm, domestic abuse, etc.

2. Financial security for the partner who is likely to sacrifice in order to raise children

B. Facilitative

1. Allows individuals to enter into contracts and arrange their lives

C. Arbitral

1. Resolving conflicts

2. Makes it more difficult for families to be divided

D. Expressive

1. Allows society to speak about their ideals and alters the behavior of people in society

2. Privileges families

3. Supports social institutions that are thought to be desirable (marriage, parenthood)

II. How Should We Define “Family”? Any definition of family involves some policy choice (decision about who should/ should not be privileged)

A. Policy: two sides

1. State should not privilege any grouping because it would be burden on people who don’t meet the definition of family

a. Benefits that married couples get

· Social security benefits

· Intestacy rights

· Tax benefits

· Healthcare/ FMLA rights

· Real estate forms

b. For some people it’s not an issue of choice… some people would like to be married but aren’t.

2. State should be allowed to privilege some groups over others

B. Spectrum: most restricted view to broadest view

1. Traditional Families:

a. State can restrict land use to no more than 2 people not related by blood/marriage/adoption (so, prohibiting roommates)—Belle Terre

· Note that law does not need to be narrowly tailored (overinclusive & underinclusive WRT the state’s interest) b/c roommates living together are not a family and no strict scrutiny. Thinks state has reason to privilege traditional family.

· Marshall in dissent: govt should stay out of individual rights issues and people should form relationships as they please

· Should have used heightened scrutiny (freedom of association) so statute isn’t narrowly tailored enough (state should regulate density and parking directly)

· This is individual rights model

b. BUT the state interest cannot be solely harming an unpopular group (hippies)—Moreno: The household restriction prohibiting unrelated people from living together had no apparent connection w/ the Act’s stated purposes of stimulating the agricultural economy and assisting the poor with their nutritional needs.

· Belle Terre made little effort to distinguish Moreno, with the exception of a footnote noting that the challenged ordinance, unlike the statute in Moreno, did not operate against an unmarried couple, since it included two “unrelated” individuals within the definition of family.

c. Benefits: easy to define, good outcome for kids

2. Broader than Nuclear Families

a. If family is defined narrowly in the statute, such that some related people are prohibited from living together, the statute is intruding on the rights of a family, so strict scrutiny applies and overinclusive/underinclusive housing statute is invalidated—Moore (family violated housing ordinance because grandchildren were from 2 different lines)

· Due Process—14th Amendment: There are un-enumerated rights protected by DPC that are deeply rooted in our tradition, and here, this kind of family grouping is deeply rooted in our tradition.

· This case was distinguishable from Village of Belle Terre v. Boraas, because that ordinance only affected unrelated individuals. The ordinance here limits its definition of family to the nuclear family, a relatively new conception.

· State can privilege extended family

b. Benefits: still pretty easy to define but allows for more flexibility

3. Based on Indicia of Familial Relationship

a. Two male life partners are “family” because they had emotional and financial commitment and interdependence, so the statute prohibiting eviction of family members following tenant’s death is read to include them—Braschi

· “The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.”

· Remember, this was not con law issue—a case of statutory interpretation

· Rent control statute was passed to protect individuals from sudden dislocation, not the same reason as intestacy law landlord used to try to define family. What family means can be different for different purposes.

b. Defines family: “(p)rimarily, the collective body of persons who live in one house and under one head or management”

· Based on reality of family life

c. Factors:

· Exclusivity and longevity of the relationship

· Level of emotional and financial commitment (intermingling funds)

· Manner in which the parties have conducted their everyday lives and held themselves out in society (same address on official docs, family members of partner called him “uncle”)

· Reliance placed upon one another for daily family services

d. Disadvantages: difficulty to know what counts as family in advance

4. Contractual model

a. State should respect whatever definition of family we choose

5. Govt must Stay Out of Individual Rights

a. Marshall’s dissent in Belle Terre (above)—state should get out of business of privileging families

b. Benefit: state is out of everyone’s business.

III. Family Law Considerations Under the Right to Privacy

A. Sources of Authority on the Right to Privacy

1. Liberty of parents/guardians to direct the upbringing and education of their children—Pierce

2. Respect for the private realm of family life—Prince

3. Activities occurring in the home between married people are private and there is a right to privacy which is found in the penumbra of enumerated rights (1st, 3rd, 4th, 5th)—must have compelling interest to infringe (so law prohibiting the use of contraceptives is invalidated)—Griswold

a. Privacy is limited to the marital bedroom (marriage—traditional family unit)

b. Not clear what form of scrutiny is, just may use some form of heightened scrutiny

c. Goldberg concurrence: things are within zone of privacy if they are “deeply rooted in our tradition”

d. J. Harlan pinpoints protection of this right of privacy to DPC of 14th amendment, which is where it is located today.

4. Right to privacy includes an individual’s decisionmaking autonomy/freedom from interference from govt (so EP clause violated by law setting out different rules for access to contraceptives by marrieds vs. singles—single people must have the same access)—Eisenstadt

a. Move beyond protection for married couples (deeply rooted in tradition) to individuals.

· Apply EPC only where there is a fundamental right at issue—the rationale here is very broad (problematically so), so it has been limited in use in future cases

· This rationale would say you can’t treat married different than single without strict scrutiny

b. Privacy is cast less as seclusion in home and much more as individual autonomy—right, married or individual, to be free from gov’t intrusion into matters so fundamentally affecting a person).

· However, switch from privacy to decisionmaking autonomy has prevailed

· Right to privacy extends to individuals, not just couples.

5. Consensual intimate conduct between adults in their homes is within the fundamental right to privacy, so some type of heightened scrutiny applies. Under any type of scrutiny the statute prohibiting sodomy is invalidated b/c the only state interest is animus to politically unpopular group.—Lawrence (here, the statute is criminal statute!)

a. Right to privacy focuses on personal relationship in the home (focuses some on decisional autonomy but also gesturing toward finding dignity for these relationships)

· Sodemy laws are increasingly being ignored (less deeply rooted in our nation’s history—just because majority things something is moral/ immoral is not enough)


a. In Zablocki, P may not ever be able to marry because he cannot prove that his daughter will never become a public charge, even if he pays outstanding child support

2. Directly?

a. Does it say you can’t get married, or just an unpleasant consequence? Need prohibition on marriage rather than disincentive to marry)

b. Ex. statute terminating social security when you get married is OK

3. BUT reasonable regulations that do not significantly interfere with decisions to enter into marital relationship may legitimately be imposed (so not every marriage-related regulation gets heightened scrutiny)

D. Even in prison (where courts use more deferential “reasonable relationship” test), inmates cannot be prevented from marrying absent a showing of compelling interest and narrow tailoring

E. Examples

1. Law saying people on welfare who get married lose welfare benefits

a. This isn’t direct, so no heightened scrutiny

2. Anti-nepotism rules in federal gov’t

a. Courts considering this say it’s not direct

3. State requiring SS# to get marriage license

a. If there was waiver without substantial burden, then no heightened scrutiny

4. 5 day waiting period

a. No heightened scrutiny (direct but not substantial)

b. But 2 year waiting period would be substantial.

III. Same-Sex Marriage

A. Under State Constitutions

1. Goodridge = state constitutional challenge after Lawrence (quote Lawrence “Our obligation is to define the liberty of all, not to mandate our own moral code.”)

a. Court is careful to distinguish civil marriage from religious marriage

b. Remember, Mass. constitution gives even more protection than federal constitution.

c. Use RB and it doesn’t pass so don’t even have to decide whether strict scrutiny applies (although it does seem to be using heightened scrutiny because it’s looking at whether there is research to support that marital household is better for children, although now there is more research on this point, so may work under pure RB)

d. Justifications Mass. gives are based on kids

· Favorable setting for procreation (“accidental procreation” argument says couples who accidentally procreate should have protections of marriageàmarriage is “corrective institution” for couples who may procreate)

· Ensuring optimal setting for child-rearing (but provide no support for this)

· Conserving state resources

e. Court says marriage is broader than just people procreating (rather it is the exclusive and permanent commitment of marriage partners to one another).

f. Also, there are other situations where kids don’t do as well (poor families) but court won’t limit marriage to that

g. Dissent: legislature is proper institution for weighing evidence on same-sex relationship

2. Consider the purported purpose of the legislation—does the legislation serve the purpose? If not, it can’t even meet RB test, let alone SS

a. Ex. state law banning same sex marriage to provide a favorable setting for childrearing is invalid because allowing gay people to marry doesn’t increase the likelihood of straight people having babies and people who aren’t planning to procreate are always allowed to get married—Goodridge