Select Page

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

Eichner—Family Law—Fall 2014

I. Marriage, Family, and Privacy

a. State’s Interest in Privileging Certain Families

i. State can privilege certain family groups & rational basis review applies

1. However, courts will look to history and tradition in consideration of the definition of family (see Moore v City of East Cleveland)

ii. Family Models

1. Traditional Family Model

a. Includes people beyond just the nuclear family

b. Privileges biological/adoptive ties

2. Functional Family Model

a. Does it operate like a family?

b. Braschi v. NY

i. Man lived in a rent-controlled apartment, only his name was on the lease. NY statute does not allow you to kick family members out of a rent-controlled apartment.

ii. Landlord tried to evict his long-term partner—been together for years and years.

iii. Court held that the meaning of “family” in the statute includes his long-term same-sex partner

c. Factors that suggest a functional family

i. Economic interdependence

ii. Evidence of enduring commitment

iii. Emotional support

iv. Shared responsibilities in child-rearing and so on

3. Individual Rights Model

a. Should rights and benefits be bestowed upon every individual equally, regardless of their family configuration?

b. Can negotiate for certain things by contract—marriage not necessary.

c. Marshall’s dissent in Belle Terre—it’s not the gov’t’s job to recognize and privilege certain people. Everyone should have individual rights and freedom of association.

iii. Benefits the State Bestows

1. Tax benefits

2. Health-care benefits

3. Standing to sue for wrongful death

4. Intestacy rights

b. Relationship Between Families and the Law

i. Village of Belle Terre v. Boraas (SCOTUS 1974)

1. Village of Belle Terre town ordinance only allowed single-family housing (essentially, wanted to rule out frat houses and college kids)

2. Ordinance defined family as those related by blood, adoption, marriage, or those living and cooking together as a single housekeeping unit (couples)

3. Owners of a house leased it to some students who had a roommate situation going on

4. SCOTUS upholds ordinance

a. Tailoring to “family needs” is a legitimate state interest & the ordinance is rationally related

ii. Moore v. City of East Cleveland

1. East Cleveland had a housing ordinance limiting houses to single families

2. A grandmother was living in a house with her adult son & his son & another grandson whose mother had passed

3. The cousin/nephew/grandchild was deemed an illegal occupant under the ordinance

4. When grandma wouldn’t kick him out, she was charged and convicted in criminal court

5. Impermissible ordinance

a. Privileging family is OK, but this is too narrow a definition of family

b. Nuclear family isn’t the only acceptable family structure—extended family counts as well. Long and established history of extended families living together, particularly in A-A community.

6. This narrow definition of family was arbitrary and not rationally related to the goal of the ordinance

a. Preventing over-enrollment in East Cleveland schools

iii. Braschi v. Stahl Associates (see above—functional family)

c. The Family, the State, and Privacy

i. Development of the Right to Family Privacy

1. Griswold v. Connecticut (1965)

a. State statute prohibited the use of contraception—by anyone, married or single

b. Justice Douglas finds a right to marital privacy

i. Under the penumbra of other fundamental constitutional rights

1. History and tradition—well established right to privacy

2. Marital bedroom especially sacred

c. The Conn. Statute impermissibly interferes with the right of a married couple to make private decisions about their family

2. Eisenstadt v. Bard (1972)

a. Law allowed contraception for married couples, but would not allow single people to obtain contraception for the purpose of preventing pregnancy, only for preventing STIs

b. Court says this violates the Equal Protection clause of the 14th Amendment

i. No rational basis for distinguishing between married and unmarried

ii. Not rationally related to its goal of discouraging premarital sex

c. Court extends right to privacy beyond the family and to the individual—whether married or not

3. Lawrence v. Texas (2003)

a. Extends the right to privacy to sexual orientation and sexual activity—fundamental liberty interest—privacy

b. Anti-sodomy law in Texas only outlawed same-sex sodomy. Opposite-sex sodomy was A-OK

c. Individuals have the right to engage in private consensual sexual activity between adults

d. Moral disapproval is not a permissible goal of a state law—overturns Bowers v. Hardwick (over O’Connor’s objection—she says it’s impermissible under 14th Amend. EP clause because it irrationally distinguishes between same-sex and opposite-sex)

e. Vague about what level of scrutiny should apply, but seems to apply some kind of heightened scrutiny

ii. Constitutional Framework for Family Law Regulations

1. Due Process

a. Rational basis—if the law does not burden a fundamental right

b. Strict scrutiny—if the law burdens a fundamental right

2. Equal Protection

a. Two different analyses

i. Suspect Class

1. If the law singles out a suspect class (or applies disproportionately to a suspect class), heightened scrutiny applies

2. Race, nationality, alienage—strict scrutiny

3. Gender—intermediate scrutiny

4. Sexual orientation? Not yet definitively a suspect class, but should be

a. Based on history of past discrimination & immutability of the distinguishing characteristic

ii. Fundamental Right

1. Strict Scrutiny—if the statute makes a classification with regard to a fundamental right, doesn’t matter if it doesn’t single out a suspect class.

II. Creating Families and Legal Obligations

a. Entering Marriage

i. Substantive Restrictions

1. Requirements to Marry

a. Formal Requirements

i. License and solemnization

b. Agreement to marry

i. Genuine meeting of minds, intention to marry

c. Persons Not Otherwise Barred

2. The Constitutional Right to Marry

a. Loving v. Virginia (1967)

i. Lovings are convicted of violating anti-miscegenation clause, told

ivate consensual activity between adults

5. Incest

a. All states ban relationships with grandparents, parents, siblings, aunts/uncles

b. Some variation between first cousins, whole-blood, half-blood, and step-siblings

c. Smith v. State (Tenn 1999)

i. Is an incest ban incompatible with the right to privacy? No

ii. Incest is a taboo that goes beyond just consanguinity

1. Encourages bonds outside of the family

2. Protects children from exploitation

6. Age

a. Most states require special permission for persons under 18

b. Often, age of marriage can be lower if someone is pregnant

c. Some states require premarital counseling for children

ii. Consent to Marriage

1. Valid agreement to marry—requires capacity to agree

a. Must be able to understand the nature of the contract and the responsibilities it entails

b. Genuine mutual intent to get married

c. Absence of fraud and duress

i. Fraud or duress

1. Did someone lie about the essentials of a marriage (usually kids or sex)?

2. If a woman tells a man she’s pregnant to get him to marry her, that could be fraud

3. But if it’s the truth, it’s not fraud

ii. Modern view of fraud/duress—case-by-case examination

1. In re Santolino

a. A very sick man on his deathbed married a much younger woman while about to die of cancer

b. His family tried to have the marriage voided after he died for lack of valid agreement to marry

d. Subjective in some respects—considers the respective parties and their situation—but fraud still should probably relate back to the essentials a.k.a. kids & sex

i. A lot of things don’t count as fraud or duress that you would think—lying about your financial position, lying about whether you already have kids, lying about your real name—none of these are enough

2. Temporary incapacity can be ratified

a. E.g., if a person was too young to get married, but they stay married well past the age of majority, then the marriage is ratified

iii. Formalities of Marriage

1. Marriage License + Solemnization

a. UMDA on page 162

2. Defects in Formality

a. If the defect is something basic—like a typo on the marriage license—it will still be treated like a marriage

b. Persad v. Balram

i. Couple had a Hindu prayer ceremony but no license

ii. Court said it was still a marriage—if it looks like, quacks like, and walks like a duck, it’s a duck

c. Other states are not as forgiving as in Persad

d. Still must make sure there was genuine intent to marry