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Family Law
University of South Carolina School of Law
Yablon - Zug, Marcia A.

I.   What is A Family?
1. What kind of family is the law willing to recognize?
o Exclusivity –
–   Recognizes only two parents
üPreferably married and opposite sexes
üAdults are either full legal parents or strangers
–   Best interests of the child
üAssures stepparents, grandparents, gay parents and a variety of other caregivers written out of the legal narrative of family
üDiscourages positive relationships w/ kids and non-parents
o Federally law =
–   Constitution: FR to liberty (procreate, marry, raise children)
–   Substantive DP – Heighten protection
üFundamental interest must be
ÆObjectively, deeply rooted in Nation’s history and tradition and
ÆImplicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.
üInfringement test
ÆStrict scrutiny (or at least heightened) review
ÆLaw Uncon unless the infringement is narrowly tailored to serve a compelling state interest.
2. Beyond blood & family ties that can define a family?
o Belle Terre:
–   6 students living together not related and law in city –
üDefined family – 1/more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. 
üDeemed a family – persons but not exceeding two living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to be a family
–   Held: no Con violation b/c no FR of unrelated people to live together
üNo FR, so rational basis test used b/c they are just ruling on econ & social issues
üGoal was legit – (less pollution, less traffic – reasonable)
–   Dissent: FR rights involved, i.e. association, privacy
üShould use SS test and law would fail
üNot narrowly tailored:
ÆCould have asked for fewer cars,
ÆAllows unlimited related people to live together
ÆReal motive: just don’t think that college students belong in this neighborhood
o Penobscot –
–   6 Mentally handicapped group home – didn’t meet statute’s definition of family –
ü2 unrelated can live together as long as the relationship is based on “other domestic bonds” –
üDistinguished from a group occupying a bording house, lodging house, club, fraternity or hotel. 
–   Held: no Con violation
üNo EP violation b/c other than blood can be a family if there is a domestic bonds –
üDomestic bond implies
ÆNeed of auth figure – More important for central auth figure when no blood ties. 
ÆNeed for permanence or stability
–   This is a middle case b/c can be unrelated and recognized as a family
o Borough of Glassboro –
–   Students living together, sharing cooking, plan to stay there at least 6 years, kitchen was shared by all, shared household duties
–   Different from BT
üBT = Fed Con
üHere state con law (can be more restrictive, just can’t restrict to blood but can restrict to single housekeeping unit)
–   Held: good statute b/c meant definition of Family –
üStable and permanent “single housekeeping unit”
üEither a traditional family unit or its functional equivalent
o Moore –
–   Grandma gets notice to remove her grandson b/c ordinance doesn’t allow cousins under the same roof
–   Ct said BT held no FR of unrelated people to live together
üBT EPC b/c it clearly is treating two groups of people differently
üBT ordinance actually about strengthening the family, but this ordinance deteriorates family
–   Heightened level of review, but not SS
üFamily isn’t beyond regulation, but when the gov’t intrudes on choices w/ family living arrangements, this Court must examine carefully the importance of the gov’t interests advanced and the extent to which they are sered by the regulation
üLegit goals (lower traffic) but could have better ordinances (limit cars) – This is arbitrary
–   Don’t say what definition of family is, but nuclear family is too restrictive
–   Dissent: no FR for related people to live together – BT case says no FR to choice who you can live with
II.       Fundamental Right to Marry
1.     Benefits of marriage
o Intestate laws, protection for disinheritance thru elective share, elected PR of spouse’s estate, WD actions, loss of consortium, workers comp benefit rights, group life ins, privilege for marital communications, homestead rights, joint ownership of property presumption, hospital visitation and other medical treatment rights of family member, equitable division, spousal support
–   Today goal to equalize status of H & W
–   But benefits of marriage haven’t diminished in value Baker:
o Marriage insulates couples from some court rules
–   Braschi – Ct said “Family” can include a gay couple, but must prove they are in a long term emotional and financial commitment and interdependence with objectionable factors
–   Married couples don’t have to prove
üMC could actually not be as close
üConventionally marriage involves the state, but if you don’t get married, more likely to have the state involved in your life
2.     Constitutionality of restrictions
o RULE:Mere “equal application” of a statute containing racial classifications doesn’t remove classifications from EPC 14th A’s proscription of all invidious racial discriminations – Loving v. Va –
–   DP argument just dicta so there is no FR b/c this was all based on discrimination of race – but was first case to describe marriage as a FR
–   Based it on history – long recognized as a vital personal rights essential to the orderly pursuit of happiness
o Rule: Right to marriage is a FR, “it is part of the right of privacy” SS test –
–   Zablocki – marriage license denied if had outstanding CS payment
üViolates EP bc treats those who can pay child support different from those who can’t
ÆWealth isn’t a suspect class, but the means chosen by the State must bear a fair and substantial relation to the object of legislation
ÆNote that loving arose in the context of racial discrim
üViolates DPC –
ÆMarriage deeply rooted in our tradition
~ Wouldn’t make sense to recognize the other rights to privacy and family if you don’t recognize marriage –
~ Only relation where you can have sex legally and therefore procreate
ÆRule: Can regulate marriage, but can’t substantially interfere
~ Can’t have a direct legal obstacle in the path of person’s FR to get married
~ Can’t have absolute hindrance on FR marriage
~ Can’t hinder other Con law rights
ÆHere State monopolized the process of marriage and excluded the poor from that process
~ If don’t pay and never going to have the money, it is an absolute hindrance
~ Other methods are available, criminal penalties, contempt – when don’t pay
~ Underinclusive b/c it only includes those who want to get married
~ Overinclusive b/c includes those who would have a new spouse who could help pay
–   Rule: in prison restrictions on FR to marry are only subject to rational basis test, not SS – may regulate time & circumstance, but can’t completely ban
üTurner found not reasonably related to penological interest
ÆInmate marriages like others are expressions of emotional support
ÆReligions recognize marriage as having spiritual significance
ÆParole or commutation and inmate marriages formed in the expectation that will be consummated
3.     Incest restrictions –
o SC statutes – NOTE – if doesn’t allow can go to another state – Full Faith and Credit Clause
–   Affinity and blood restrictions
üConsanguinity: based on blood
üAffinity: legal marriage relations
–   Step brother and sister and cousins allowed to marry
–   Adopted child considered regular blood child
–   SC sex out of marriage is illegal (unconstitutional, but hasn’t been challenged), so maybe these restrictions are un Con
–   Incest Prohibited [§ 20-1-10] – All persons may K to marry EXCEPT
üMentally incompetent
üCan’t marry mom, GM, D, GD, step –mom/dad, sister/bro, grandfather’s W/H, son’s W/H, grandson’s W/H, W’s mother/d – GM/F, D/S, GD/S, brother’s DS, Sisters’ D/S, father’s/mother’s sister, mother’s sister, or another man or another woman
–   Criminal Incest [§ 16-15-20] – have sex w/ one of the above, then guilty of criminal incest and shall be punished by either/both
üFine of not less than $500
üPrison less than one year in the Penitentiary
o Reasons for incest prohibition
–   Genetics
üBut cousin don’t increase genetic diseases as much as other people w/genetic diseases
üIf genetics reason then we could just test those with diseases
–   Sexual relations can be exploitation
üArranged marriages aren’t sex exploitation
üBut not that prohibition marginally needed b/c enough social disgust
o Rule: Prohibition against intermarriage of those related by consanguinity can be understood to extend to those of ½ blood as well as whole blood
–   Singh – Issue: Whether a marriage b/t persons related ½ uncle and ½ niece is incestuous under our statute and void à YES–
–   Examined history’s treatment – (probably trying everything to justify prohibition)
–   Even though we recognize marriages from other countries and states court there are exceptions
–   Policy reason – Cali citizens might want to realize, but our citizens might not – elected leg doesn’t
–   Court relied on a case with sex exploitation, w/ no blood relations
4.     Age restrictions
o NO license to applicant under 16 (§20-1-250)
–   If 16-18 need sworn affidavit issued by probate judge/other officer
–   Must be signed by dad, mom, other relative, or guardian giving consent to marriage
–   Void if under 16 even CL (20-1-100. Minimum ages for valid marriage is 16, if under void ab initio)
o RULE: Statute denying marriage to those under 16 doesn’t deprives those of liberty under DPC,
–   Moe – 15 and 18 years old and want to be married to make their kid legit – the girl needs consent. 
–   Claimed mother wouldn’t give b/c she wanted money from state. Brought as a class action based on FR to get married
–   Rule: Age restriction statutes needs to pass rational basis test
üParental consent is rational to state’s legit interest
ÆMature decision-making -preventing unstable marriages (but what about statistics on 2nd marriages)
ÆSupport parent’s FR to privacy to raise child
ÆVulnerability of children –
üMarriage is FR, but one of the most regulated institution we have
üConcerns of the whole override the concern for these two
üFR right to marry & FR to child rearing – Later is more supported by case law so it overrules the former
5.     Monogamy – Bigamous statutes in every state
o  Bigamous marriage void: 20-1-80.;
–   EXCEPT –  Five year rule –
üH /W absent from space for 5 years & other didn’t know where H/W was living
üUsed when a person abandons the spouse and courts trying to distributed life insurance policies, estate, adoptions. 
üMakes marriages voidable
–   But presumed married regardless of time presumption, if married, abandoned, and later find out spouse that abandoned you  is dead – 1st spouse has burden of proof –
o Unlike incest not universal taboo – not inherently wrong – but still wrong b/c:
–   Child exploitation – article on boys in polygamy communities that are shunned b/c not enough girls to go around
–   Not legally recognized, therefore can get financial assistance & state can’t really find out that really married b/c no records
o Rule: No infringement on FR to marriage or other Con Law rights Bronson
–   Πs assert deprives them of right to free exercise of their religious beliefs, right to association, and right to privacy
–   Case law shows that ban on polygamy b/c inextricably woven into the fabric of society
–   Distinguished s/ct case Lawrence which held: TX could not criminalize Π’s private sexual conduct of sodomy –
üLawrence didn’t address whether gov’t must give formal recognition to any relationship that homosexual persons seek
üLawrence can’t be read to mean a state must give formal recognition to a public relation of polygamous marriage
üLaw here doesn’t preclude their private sexual conduct, just states that marriage isn’t valid
ÆThat case had 2 adults who, w/ full and mutual consent from each other
ÆPolygamy v. gay marriage, would you be able to allow one and not the other
o Rule: Polygamous relationship alone insufficient to support custody award Sanderson:
–   Must evaluate all the circumstances and the kid’s best interest turns on numerous factors. 
üMoral character is just one of many factors to consider
üCan consider that she is breaking the law, but it is just a factor
–   Standard for termination of parental rights not applicable to child custody disputes.
6.     Procedural and state of mind restrictions
o Rule: Procedural formalities are left open to the states cts b/c fed ct has no business in state issue Rappaport
–   Fed cts reluctant to get involved in Family Law
–   Restrictions
üCan’t be significant restriction on right to marry (States can require clothes and rings see rapporport)  –  
üMinimal and hardly a significant burden on choice to get married – not preventing those who want to do so to get it done
üSubject to reasonableness test
–   Policy reasons –
üAvoid hasty marriages and help go to the states goal of long term marriages and healthy children
üSTD testing – Have to be given the option to opt out –
ÆFalls under police power to protect the public, so was a reasonable restriction
ÆProtects health of children (& protects spouse but that alone not enough)
–   SC procedures
üLicense required for procedural marriages (20-1-210: marriage w/o a license unlawful, but 20-1-130: the state recognizes CL
ü24 hours wait b/f you can get license (Avoids intoxicated)
ü$15 fee – so really not a restriction, but if $1000 likely a prohibition to the poor)
üWho can perform marriages: notary of public, judges, religious officiates (§26-1-90)
ÆSC is one of only 3 states that allow Notary public to perform
ÆEases marriages – costs lower, no religious ceremony then this is a goo

n rts & protections to people once ignored or excluded
üLawrence – Common human dignity protected by 14th A – gov’t cant intrude on
ÆDeeply personal realms of consensual adult expressions of intimacy and One’s choice of an intimate partner
ÆThe right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare
–   Leg rational to enact rules if CM created and regulated thru exercise of police power
üHistory of discrim by preventing rights based on sexual orientation, no rational basis shows alter motive to discrim =
ü Con can’t control such prejudices but neither can it tolerate them. – shows based on sexual orientation only
üUsing RB, so didn’t even go to SS (didn’t have to decide if homosexuals were a protected class – which is a harder argument)
üDP RB test requires that statutes bear a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.
üEPC RB test impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of a disadvantaged class
–   Does it offend equalities –W/o rt to marry, or w/o right to choose to marry – YES Excluded human experience& denied full protection of laws
üLoving – civil marriage has long been termed a ‘civil right’ – right to marry as of fundamental importance for all individuals and as part of FR of privacy implicit in the 14th A DPC – won’t be proud of ourselves later
ÆRight to marry must encompass the right to choice, b/c Loving “right to marry means anything it at least means the right to choice who you will marry
ÆDissent: Loving doesn’t mean we can marry anyone we want, but restrictions have to be Con
üCivil marriage is central to lives of individuals & welfare of the community
üMarriage has enormous private and social advantages
ÆOnce a deeply personal commitment to another human being & a highly public celebration to ideals of mutuality, companionship, intimacy, fidelity, and family.
ÆAssociation that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.
ÆB/c fulfils yearnings for security, safe haven, and connection that express the common humanity, civil marriage is esteemed institution, & decision whether & whom to marry is life’s momentous acts of self-def
üSocial institution of the highest importance, anchors ordered society by encouraging stable relation over transient ones
o Guest speaker
–   1970’s appellate cts : prohibition on same sex marriages –Constitutionally permissible for the states to discrim on opposite sex
–   1990’s – more legislative arguments (more limited)
üNot discrimination based on sex, actually equal treatment because applies to both women and men
üDefinitional – one man one women
üProcreation is the reason for marriage
üNo FR for same sex marriages
–   Baker v. VT: violated state Con to give same sex and opposite sex couples the same benefits (common benefit clause similar to EPC) – Civil Union can’t be piggybacked to other cases that used the term “marriage”
–   SC – constitutional amendment – we won’t recognize VT or CT legally
–   Challenge marriage in their own state – just appealing to state constitution (states can do more than fed Con) –
üLess case law from state to state, would lose in a S/ct case,
üIdea is to gradually make a change, show that state doesn’t fail if recognize same sex marriage, piece meal approach might also get other states to recognize it (CA spread to OR and WA), (MA spread to CT) = regional character
–   Hernandez – couples claim that statute limiting marriage to opposite sex-couples violated NY CON DPC and EPC – ct disagreed
üCourt is sympathetic, but says it is a legislative decision
ü2 arguments court embraced are different – No definitional or procreation argument, instead argued
ÆLevel of scrutiny is weak – Statute that provides recognition just subject to rational basis
ÆChild rearing argument
ÆAccidental procreation: Different sex couples can accidentally procreate – while nothing that same sex couples could do would give them a child
~ State might want to incentivize those couples to get married when they accidentally have a child
~ Children might need stability so one way to have them get married for the child –
~ But could argue: reason to give benefits to same sex couples to marriage is to protect children from opposite sex couples having accidental children
üDP – Leg could have rationally decided
ÆFirst see if Leg restricts exercise of FR – one deeply rooted in US history and tradition – Classifications based on sexual orientation are not subject to strict scrutiny (presumed valid if legit state int)
~ Perhaps that principle would lead a court to apply heightened scrutiny to sexual preference discrimination in some cases, but not where it reviews legislation governing marriage and family relationships
oPerson’s preference for the sort of sexual activity that can’t lead to the birth of kid relevant to the State’s interest in fostering relationships that will serve CBI
oTherefore, rational basis scrutiny is appropriate
ÆFor BIC it was more important to promote stability, and that same-sex relationships were more unstable than opposite-sex ones; and
ÆIt was better for children to grow up with both a mother and a father, even if no scientific evid b/c leg could rationally proceed on common sense premise