Family Law Outline

Family Law

Bach

Spring 2015

1. Trends in Family Law, Defining Families, and Exploring the Law’s Impact on Family

a. Key point of the discussion – what is a family?

i. Blood, same home, love/connection, consider themselves a family, etc

b. Does no-fault divorce support or hinder family?

i. If you assume no-fault undermines families, what does the law do?

1. You would have to assume the goal of the law is to protect families

a. Families good for society so protecting families protects society

2. Would then assume there would be fewer divorces

a. Compel families to stay together -> assume law changes behavior

b. Making a choice b/w effect on family and economic effect

ii. Factual assumption of this entire line of thought -> marriage makes society strong and law incentivizes behavior

2. Evolution of the Right to Privacy – Principles and Boundaries: Family Privacy and the Outer Limits of a Legal Family

i. For all of these cases – think about the zone of privacy

1. Focus

a. Who is the right’s holder?

b. What rights do they hold?

c. Who’s the family?

d. What is the prohibited regulation?

2. Note – if in the zone of privacy, the issue is subject to heightened scrutiny

a. If outside, subject to lower levels of scrutiny

b. Following cases will highlight SCOTUS trying to decide what is in the zone and what isn’t – what is subject to heightened scrutiny and what isnt’

b. Meanings of Privacy

i. Griswald v. Connecticut

1. Facts

a. Director of Planned Parenthood and Yale Med professor set up clinic to give contraceptives and information – both convicted

b. Crime – use of contraceptives – above parties accessories to that crime by providing the contracceptives

2. Rights-holders

a. Physicians, patients -> Court particularly concerned w/ the rights of married couples

b. Why them? b/c they were the people allowed to have sex

3. Result

a. State has no business in the marital bedroom – extends the zone of privacy

b. Cant regulate what happens b/w these people in that space

ii. Eisenstadt v. Baird

1. Facts

a. University lecturer gives contraceptive to unmarried student at a lecture

2. Rights-holder

a. Individual

3. Rights held

a. Procreative rights

4. Evolution from Griswald

a. State can no longer differentiate b/w married and unmarried

5. Note – societal changes b/w here in ’72 and Griswald in ’65 – sexual revolution, Civil Rights, Vietnam, easier to obtain birth control

6. Key thought – women should be able to chose to engage in sex w/o kids too

a. Note – this shift sets the stage for Roe

b. Kids no longer an essential part of the vision of a family

c. Roots of Privacy

i. Meyer v. Nebraska

1. Facts

a. School teacher wants to teach students German

b. Involves both his rights and the rights of the students’ parents

i. right to have kids taught as they want -> right to raise children and educate them as you choose

2. Rights Held

a. Interest in children’s education – acquisition of knowledge

3. Family

a. Nuclear family to educate kids in privacy of home – or here, the protected zone of the school

4. Key

a. States cannot infringe upon parents choosing type of education for children unless there’s a really good reason -> it seems to be a fundamental right so would need to pass strict scrutiny test

i. Narrowly tailored to accomplish a compelling state interest

ii. Pierce v. Society of Sisters

1. Facts

a. Compulsory Education Act required public school attendance of all kids 8-16

b. Society runs a private school

c. State wants kids in public school so they can regulate curriculum

2. Holding

a. Can require education, but cannot mandate public school attendance

3. Rights Holders

a. Kids, family, private school/society

4. Rights

a. School – education as well as a economic liberty interest born out of the right to contract

b. Family – right to choose education

5. Note – still the stereotypical nuclear family

d. Defining Family

i. USDA v. Moreno

1. Facts

a. To get food stamps – everyone in family must be related -> didn’t want hippie communes getting them

b. Here – poor older woman w/ diabetes lived w/ friend and friend’s 3 kids -> solving problems by pooling resources

c. Govt denies the older woman food stamps and tells younger mother she will lose hers if she doesn’t move out

d. Essentially – state trying to require family to be nuclear family to receive benefits

i. Not banned from living together – just banned from getting govt benefits if they do

2. Court – 5th DPC requires a more compelling reason than the one provided about hippie communes and that the law doesn’t prevent fraud as legis. claimed

a. Says govt essentially punishing the poor for being poor

3. Rights held

a. Right to association – which can’t be limited in this matter

b. Note – that’s also a 1st Am right so a fundamental right subject to strict scrutiny

4. Family

a. Court – state doesn’t understand the reality of poverty – as rights holders, they can associate they way they want

b. Creates a broader def of family

e. The Extended Family

i. Moore v. City of East Cleveland

1. Facts

a. Pl lives w/ son, 2 grandsons (one is the son’s son and the other is the son’s nephew, one of their mother’s had died)

b. City tells her that the orphaned grandkid was an illegal occupant of the home

i. Seeks to kick him out, even though she owned the house (not government housing where they could control the occupants)

c. Ordinance – designed to limit housing to single family homes – trying to keep the area middle-class by forcing nuclear families

i. Concurrence – notes the structure of black families and suggests that this might be racially motivated

2. Holding

a. City can’t arbitrarily define family – that’s in the zone of privacy

3. Note – the state tries to differentiate this from the Meyer line of cases by claiming that since she is a grandparent, she doesn’t have the some rights interest as a parent would

4. Key – the zone of privacy boundary is a contested boundary

f. Privacy Revisited

i. Lawrence v. Texas

1. Concern – what liberty is protected by the 14th DPC

a. spatial – the home

b. transcendent dimensions – trying to articulate the liberty w/in the relationship

2. Facts

a. Texas law prohibits deviant sexual act b/w people of the same sex

i. Differs from law in Bowers b/c that law prohibited the act regardless of the sex of the actors

3. Rights-holders

a. Gay community or everyone?

i. In Bowers – the issue was framed as the right of homosexuals to engage in certain sexual act

ii. Here – the issue frames as individuals to engage in private sexual conduct

1. An individual procreative right in the most private of places, the home

4. History

a. Disputes claims that there is historical precedent for such laws – says they only started in the 1980s – before that, prohibitions were aimed at all classes, not just homosexuals

5. Key – issue not history, but whether majority may use power of the state to enforce their views on society as a whole

6. Scalia dissent

a. This would eliminate any legislation of sexual conduct (like rape) or morals in general (like murder)

ii. Wyman v. James

a. Note – post Meyers/Pierce but before other cases

2. I – did state agency have the ability to enter home as part of awarding welfare-like benefits?

3. Facts

a. Single mom wants welfare – claims 4th A