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Family Law
University of Richmond School of Law
Harbach, Meredith J.

Family Law


Spring 2017

Course Introduction and Themes.

What is a Family?

4 Main Categories:

Legal Status as a Family (i.e., adoption, marriage, etc.)
Functions performed—What people do for one another, for example, pooling their resources
Emotional Bonds
Main Theme: Why does the law care about family? There is a tension between what the individual wants to do and the regulation of the family.
Purposes of Family Law:

Protective: Protection for individuals from harm inflicted by other individuals‑financially, physically, emotionally (think property division and alimony). Casebook, Pg. 12
Facilitative: “Helps people to arrange and live their lives the way they choose.” Casebook, Pg. 12.
Arbital: “Helps people resolve their conflicts.” Casebook, Pg. 12.
Expressive: “Works by developing the laws power to impart ideas through words and symbols.” Id.
Channeling: “The law develops and supports social institutions which are thought to serve desirable ends.” Casebook, Pg. 13.

Constitutional Protections for Family:

Defining the Family—Moore v. City of East Cleveland:

“When a city undertakes such intrusive regulation of the family, [rational basis review DOES NOT] govern, the usual judicial deference to the legislature is inappropriate. ‘This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment.” Casebook, Pg. 15
“A host of cases…have acknowledged a ‘private realm of family life which the state CANNOT enter.” Casebook, Pg. 15/
Standard: “Of course, the family is NOT beyond regulation. But when the government intrudes upon choices concerning family living arrangements, this Court must examine carefully the importance of the government interests advanced and the extent to which they are served by the challenged regulation.” Casebook, Pg. 15.
Protection EXTENDS PAST THE NUCLEAR FAMILY: “Unless we close our eyes to the basic reasons why certain rights associated with family have been accorded shelter under the 14th Amendment’s Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved here.” Casebook, Pg. 16.

“Our tradition is by no means a tradition limited to respect for the bonds uniting uniting the members of a nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.
The underlying theory in this line of cases (i.e., substantive due process) is that the protection beyond the nuclear family is “deeply rooted in the history and tradition of our nation.” Casebook, Pg. 17.
Families and the Law: The Right to Privacy.

Origins of the Right in Myer, Pierce, and Prince.

“Without a doubt, [liberty in the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual to…marry, establish a home and bring up children…” Casebook, Pg. 22–23, Myer v. Nebraska (striking down a ban on teaching German to children).
Pierce v. Society of Sisters. Striking down a compulsory public school statute because it “unreasonably interfere with the liberty of parents and guardians to direct the upbringing an education of children under their control…. The child is NOT the mere creature of the state; those who nurture him and direct his destiny have the RIGHT, coupled with the high duty, to recognize and prepare him for additional obligations.” Casebook, Pg. 23.
“It is cardinal with us…that the custody, care and nurture of the child resides first with the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, Casebook, Pg. 23.

Right to Contraception—Griswold v. Connecticut.

“Cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Casebook, Pg. 25. The marital relationship lies within that zone. The ban “forbidding the use of contraceptives rather than regulating rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.” Casebook, Pg. 26. The regulation in this case swept too broadly.

“Whatever the rights of the individual to access contraceptives may be, the rights MUST BE THE SAME for the unmarried and the married alike.” Eisenstadt v. Baird, Casebook, Pg. 39.

Equal Protection: A classification distinguishing between married v. unmarried couples will be reviewed only for rational basis. Statutory classification must be rationally related to a legitimate government purpose.

****“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”**** Casebook, Pg. 39.
Lawrence v. Texas and the Right to Privacy:

“The right to make certain sexual decisions regarding sexual conduct extends beyond the marital relationship.” Casebook, Pg. 45.
“It suffice

considered a “reasonable regulation” that DOES NOT significantly interfere with the right to marry, RATIONAL BASIS IS APPLIED.


“Marriage is a social relation subject to the State’s police power, [but] the powers to regulate marriage are [not] unlimited” under the commands of the 14th Amendment.” Loving v. Virginia, Casebook, Pg. 69.
“At the very least, the Equal Protection Clause demands that racial classifications, especially in criminal statutes, be subjected to the ‘most rigid scrutiny.’” Id. at 70

Standard—Strict Scrutiny: “If [racial classifications] are ever upheld, they must be shown to be NECESSARY to the accomplishment of some [COMPELLING] state objective, independent of the racial discrimination which it was the object of the 14th Amendment to eliminate.” Casebook, Pg. 70.

“Under our constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the state.” Casebook, Pg. 70.

Gender—Obergefell v. Hodges: “The right of same-sex couples to marry that is part of the liberty promised by the 14th Amendment is derived, too from that Amendment’s guarantee of equal protection of the laws.”

“In assessing whether the force and rationale [the fundamental right to marry] appl[ies] the same sex couples, the Court must respect the basic reasons why the right to marry has long been protected.” Pg. 91.
Four Principles and Traditions “demonstrate the reasons marriage is fundamental under the Constitution [and] apply with equal force to same-sex couples.”

“The right to personal choice regarding marriage is inherent in the concept of INDIVIDUAL AUTONOMY.” Casebook, Pg. 91.
“The right to marry is fundamental because it supports a two person union unlike any other in its importance to the committed individuals.” Casebook, Pg. 91.
“It safeguards children and families and thus draws meaning from related rights of child rearing. Procreation and education.” Casebook, Pg. 92.
“This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.” Casebook, Pg. 92.