FAMILY LAW – FALL 2015 – PROF. HOLNING LAU
I. INTRO AND RIGHT TO PRIVACY
A. 5 Functions of Family Law
Linda McLain – “Love, Marriage, and the Baby Carriage: Revisiting the Channeling Function of Family Law”
1. The “protective function”: a basic duty of law is “to protect citizens against harms done by other citizens.” In the context of the family, Schneider explains, we think particularly of the state’s interest in protecting spouses and children from abuse and of fostering children’s best interests.
2. The “facilitative function”: “to help people organize their lives and affairs in the ways they prefer.” Family law does this, Schneider argues, “by offering people the law’s services in entering and enforcing contracts, by giving legal effect to their private arrangements.”
3. The “arbitral function”: family law helps people “resolve disputes.” This is seen in the law of divorce, since “divorce courts primarily adjudicate conflicting claims to marital property, alimony, and child custody.”
4. The “expressive function”: this function “works by deploying the law’s power to impart ideas through words and symbols.” This function has two related aspects: “first, to provide a voice in which citizens may speak and, second, to alter the behavior of people the law addresses.” Schneider has argued, elsewhere, that in listing grounds for a fault-based divorce, divorce law expresses an ideal of proper marital behavior: good spouses are faithful, not cruel, and live together.
5. The “channeling function”: “in the channeling function the law creates or (more often) supports social institutions which are thought to serve desirable ends.”
o Note: Many states channel people into marriage by only making domestic partnerships (or other alternative relationship designations) available to people above a certain age (ex. Over 62)
B. Evolution of the Right to Privacy
1. GENERAL NOTES – LEVELS OF DP SCRUTINY (Con Law Review)
a. RB – rational basis
a. Means-ends analysis – law must be reasonably related to a legitimate state interest
b. RB w/ bite – rational basis with bite
a. “More searching form of RB review” – somewhere between RB and IS (see Lawrence v. Texas – majority and concurring opinion)
c. IS – intermediate scrutiny
a. Means-end analysis – State interest must be important and law must be substantially related to that interest
b. Gender discrimination automatically gets intermediate scrutiny
d. SS – strict scrutiny
a. Means-ends analysis – Must be a compelling state interest and law must be narrowly tailored to that interest
b. Racial discrimination automatically gets strict scrutiny
2. Birth of Privacy
a. Parents
a. NOTE: DON’T WANT TO CITE THESE CASES FOR RIGHT OF PRIVACY DOCTRINAL TEST, BUT DO STILL STAND FOR THE OVERARCHING PROPOSITION THAT PARENTS DO HAVE SOME PRIVACY RIGHTS
b. Meyer v. NE (US 1923)
§ Standard: Mix b/w RB (rational basis) and SS (strict scrutiny)
§ 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 (requiring parents to send kids to public school for x amount of years) 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 (Use of Contraceptives):
a. Griswold v. CT (US 1965)
c. Facts: Appellants were arrested and charged with giving information to married persons on means of preventing conception, making them accessories under a state statute making it illegal to use contraceptives
d. Standard: Higher than RB (“means [cannot] sweep unnecessarily broadly and thereby invade the area of protected freedoms”)
§ RULE: Right of married couple to use contraceptives is protected by the DPC of the 14th Amend. under right to privacy
· Privacy relating to family relations falls w/in the penumbras of Bill of Rights
i. “Penumbras” = overarching principle that extends throughout BoR (court is struggling doctrinally, so basically says it is assumed by BoR)
1. NOTE: SCOTUS has since moved away from reliance on penumbras
· Difference b/w economic regulations and the regulation of INTIMATE aff
2007)
a. Standard: SS
b. RULE: Upholds Congress’s ban on partial-birth abortions
ú Pre-Viability: Not a substantial obstacle to abortion or undue burden (this is the test)
· There are other methods besides this (chemical injection, removing in parts)
ú Post-Viability: Declines to say whether there are exceptions for mother’s health – Court says wait to see until this kind of case is brought
ú State interest in respecting fetal life and protecting women
c. NOTE: AGAIN, COURT USES SUBSTANTIVE DP INSTEAD OF PENUMBRAS LOGIC
d. UPSHOT: Gets rid of trimester system; Entrenches “undue burden” test for pre-viability abortions
2. The Liberation of Privacy
· Lawrence v. Texas (US 2003) – NEED MORE ON THIS – VERY IMPORTANT CASE
a. Standard: RB with teeth (consensus interpretation, although SCOTUS is very unclear)
ú Say the standard has “teeth” because the opinion links the case to earlier liberty cases that applied a heightened standard of review – indicating that the standard here may be a bit higher than plain RB
b. RULE: Violation of DPC of 14th to criminalize consensual adult sodomy (not specifically between homosexuals, but at all).
ú Establishes right to private, consensual adult sexual conduct
· Important how the Court framed the right – RIGHT TO DO ANYTHING SEXUAL YOU WANT IN YOUR OWN HOME AS OPPOSED TO ONLY ENGAGE IN SODOMY (Bowers)
o Lawrence : general right of privacy :: Bowers : specific act of homosexual sodomy
· 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. Rationale: Specifically says that the holding is under substantive DP and not EPC – worry is that if the law was deemed unconstitutional under EPC, Texas would just broaden the law to ban sodomy between non-homosexuals as well
