Prof. Maxine Eichner, Fall 2014
PART I: MARRIAGE, FAMILY, AND PRIVACY in CONTEMPORARY AMERICA
Does the State have a legitimate interest in privileging (particular) families?
The American Family Today: It’s not the ‘50s anymore.
o Proponents of Change
§ ‘60s-today: Marrying later in life; surge in divorce rates; plunge in remarriages; flood of new alternatives to marriage (cohabitation); births to unwed mothers; reproduction revolution; young people living alone
o Reservations about Change
§ “The lack of ‘conceptual clarity about marriage and its meanings’ in both professional and popular debate has resulted in diminished understanding of the stakes at issue in the transformation of the family.” Family law is headed in one or more of at least four “troubling” directions.
v Equivalence between cohabitation and marriage: Problem: (1) this approach denies that some couples intentionally choose not to marry; (2) when it comes to raising kids, cohabitation is less stable and safe than marriage
v Redefining marriage as a couple-centered bond: Problem: To promote same sex couples, this approach redefines marriage as a gender-neutral union of two persons. By doing so it neutralizes the law’s ability to say that children need their mothers and fathers, and reifies a new conception of marriage that is centered on the couple rather than the children.
v Disestablishment, or the separation of marriage and state: Problem: this approach denies the state’s legitimate and serious interest in marriage as our most important child-protecting social institution and as an institution that helps protect and sustain liberal democracy.
v The gendered definition of marriage has already met serious challenges (and been defeated) in court.
§ The competing models of marriage at odds in family law debates
v The Conjugal View: sexual union between husband and wife; fidelity; mutual caretaking; joint parenting. (Child-centered)
v Close Relationship Model: marriage as a private relationship between two people created primarily to satisfy the needs of adults. Marriage and children are not intrinsically connected
o Two Americas: The Importance of Social and Demographic Differences
§ America’s marriage market is tied with educational attainment. Educational attainment—closely linked to income and earnings potential—increasingly predicts marital stability and happiness.
§ The marriage gap: the rate of cohabitation is higher among persons w/lower educational and income levels than for college graduates, as is the rate of childbirth before or outside of marriage.
§ Less-educated Americans divorce at a higher rate than college-educated citizens
§ What constitutes a family? Recent trends have created confusion: high rates of childbearing outside marriage; high levels of divorce and remarriages; childbearing w/multiple, serial partners; committed couples who live in separate homes; and the separation of immigrant families
o Does the state have a legitimate interest in privileging (particular) families?
§ Even liberal writers endorse the idea that the state’s business is “to foster stable, long-term” coupling. The ability to imagine and cultivate forms of the good life that do not conform to the dominant pattern would seem to be at least as fundamental as any putative “right to marry.” If so, then the role of the state should be to protect against the abuses of majoritarianism. The claim that the state has an interest in fostering long-term coupling is profoundly antidemocratic. When the state imposes a majoritarian view of the good life, it cannot claim to act on the basis of a neutral consideration of the possibilities; it acts to prevent such consideration.
What place, if any, should marriage have in Family Law?
· Some argue that the state should continue to privilege only traditional marriage
o The union of two persons of different genders creates a unique relationship of potential strengths and inimitable potential to society. Men and women are fundamentally different.
o History and common experience across cultures
o Makes it easier for government to disburse benefits, etc.
o Best for children
· Others argue that the state should open marriage up to same-sex couples
· Others argue that a broad variety of families should receive privileges
o Marriage as a family form is not more important or more valuable than other family forms. Therefore, the law should not give it more value.
· Still others argue that the state should terminate civil marriages all together
o Blaming the plight of children on their parents’ marital status w/o considering actual economics is bad policy
o Transfer the social and economic subsidies and privilege that marriage receives to a new connection—that of caretaker-dependent
o Family is not synonymous w/marriage. Shouldn’t need marriage for family.
o Leave marriage to religion
The Purposes of Family Law
· The Protective Function: the state has an interest in protecting adult partners and children from abuse and of fostering children’s best interests.
· The Facilitative Function: allows people to enter into enforceable contracts and by validating their private choices
· The Arbitral Function: helps people resolve their conflicts
· The Expressive Function
· The Channeling Function: the law develops and supports social institutions that are thought to serve desirable ends
The Relationship between Families and the Law
· Defining “Family”
o Traditional Approach (can favor related people):
Village of Belle Terre v. Boraas
· Ordinance challenged: Restricted land use to one-family dwellings. A family could consist of related people or no more than two unrelated people.
· Holding: upheld zoning
· Rationale: The ordinance does not involve a fundamental right, such as the right of association or the right of privacy. Social and economic legislation garners the RBT. The legislature had the discretion to define “family” to include no more than two unrelated people.
· Govt Interest: control population density, prevent noise, traffic, and parking problems, preserve the rent structure of the community, and its attractiveness to families.
· Source of Authority: A municipality’s permissible police power extends to zoning to encourage family values, youth values, and the blessings of quiet seclusion and clean air.
o The Individual Rights Model:
Belle Terre’s Dissent
· The ordinance burdens the freedom of association and the right to privacy. “The selection of one’s living companions involves choices as to the emotional, social, or economic benefits to be derived from alternative living arrangements. Further, “the choice of household companions—of whether a person’s intellectual and emotional needs are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind and quality of intimate relationships within the home.”
o The ordinance discriminates on the basis of a personal life style choice. It reaches beyond control of the use of land or the density of population, and undertakes to regulate the way people choose to associate within the privacy of their own home
· SOR=compelling and substantial interest. The interest is substantial, but the means to accomplish the interest are over and under inclusive
o The Expanded Approach:
social and legal norms that describe marriage as occupying a private realm of family life which the state cannot enter.
· Lawmakers have sought to define and reinforce foundational social values relating to citizenship, morality, childrearing, gender and race.
· Two trends have contributed to the deregulation of marriage:
o (1) the fundamental transformation of the understanding about the central purposes of marriage.
§ Before: marriage was valued as an institution that provided social and communal benefits; permitted the establishment of kinship alliances, provided economic security for women, and provided a stable environment for expressing sexual desire and, consequently, rearing children. Also, people married to follow social norms.
§ Now: inward justification: marriage facilitates the bonding of intimate partners
o (2) the recognition of significant constit’l limitations on gov’t power over family life
§ 1960s: privacy rights
§ 1970s: EP
v Place marriage law on a more gender-neutral footing and articulate strong public reasons for marriage laws that had once seemed natural and self-evident
Substantive Restrictions on Marriage
· The Constitutional Framework
Substantive DP: the federal and state governments may not deprive any person of “life, liberty, or property, without due process of law.” Substantive due process demarcates the line between, on the one hand, acts by persons of a public or private nature that courts hold are subject to public regulations or legislation, and on the other hand, acts that courts place beyond the reach of governmental interference.
EPC: a state can’t deny any person w/in its jurisdiction “the equal protection of the laws”
o THE RIGHT TO MARRY
§ Racial Restrictionsà Loving
ü DPC: The freedom to marry is a liberty interest, fundamental to our very existence and survival. Loving.
ü The 14th A requires that the freedom of choice to marry not be restricted to invidious racial discrimination. The freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State. Id
ü EPC: Anti-miscegenation laws violate the EPC because, while they apply equally to everyone, a state may not justify racial classifications with invidious racial discrimination. Id.
§ Non-racial Restrictionsà Zablocki
ü Instead of normal EP analysis (suspect classes garner SST/heightened scrutiny and non-suspect classes garner RBT), courts may opt for fundamental rights analysis (if there’s a fundamental right, use the SST; if no fundamental right, use RBT).
ü Reasonable regulations that do not significantly interfere w/decisions to enter into the marital relationship may legitimately be imposed.
ü Direct and substantial interferences may not be imposed.
Zablocki : struck down a state law that prevented a person who failed to pay child support from getting married to a TP
Ex. A law saying people on welfare who get married lose their benefits?