Family Law, Knouse, Spring 2014
PART 1 – INTRO
· (A) THEME OF FAMILY LAW
o Benefits of marriage:
§ Health benefits, life insurance, survivor’s benefits (workers’ comp only applicable to married people), intestate succession, presumptive fatherhood, own property by the entireties.
§ Stability enhanced by symbolic commitment, enforced by law.
o Third party respect, societal expectations, approval of employers.
o Things you can do by contract without marriage:
o Own joint property, designate each other as medical decision makers, put each other in wills.
· (B) FAMILIES AND CONSTITUTIONAL RIGHT TO PRIVACY
o Right to Privacy (aka liberty)
§ DP: no state shall deprive anyone of liberty w/out DP of law
§ Content of right: marriage, raising children, contraception, abortion, sexuality, et
§ Nature of right: bodily, marital, spatial, individual, decisional, etc.
§ 1st Amdnt: freedome of association (relational)
§ 3rd Amt: sptial
§ 4th Amd: sptial
§ 9th Amd (catchall)
o Griswold v Connecticut
§ Facts: Appellants were arrested/charged w/ giving information, instruction, and medical advice to married persons on means of preventing conception (STATUTE)
§ Found guilty as accessories (fined $100/each) and claim (ISSUE) that the accessory statute as applied violated their 14th Amendment rights
§ Statute: “any person who uses a drug/instrument for purpose of preventing contraception…” also theres an accessory statute which def. was convicted under
§ Griswold: I have a substantive DP right to privacy
§ I?: is the right to use contraception a fundamental right? YES
§ Held: gov. purpose to control/prevent activities constitutional subject to state regulations may NOT be achieved by means which sweep unnecessarily broadly and invade protected freedoms
§ Spatial privacy = bedroom
§ Specific guarantees in the Bill of Rights have penumbras of privacy , which certain un-enumerated rights are said to exist (i.e. 1st Am right to association, schooling, etc. not specifically listed in Am but assumed/said to exist as part of the freedoms associated in the Am.)
· Similar notions found within the 4th and 5th and 9th amendments
§ Present case concerns rel. in Zone of Privacy created by several fundamental CON guarantees
· The right of privacy in Marriage is sacred = cannot allow searches for contraceptives
· The same proves true for the doctors/physicians
§ Fundamental right of privacy in marriage = sacred
§ Summary: explicitly recognizes a Constitutional Right to privacy. Uses a spatial argument, using the marital bedroom argument. Therefore, the right to privacy applies in your home. They apply the right to privacy as a relational right? Attaches to the married couple themselves.
o Eisenstadt v. Baird – discriminating btwn married vs. unmarried = EPC violation (broader concept of privacy)
§ Facts: Baird convicted at bench trial in MA (1) for exhibiting contraceptive articles when delivering a speech at BU, (2) for giving a young woman a package of vaginal foam who was unmarried. MA statute says: giving away contraceptive materials to unmarried ppl (if youre married you can get contraception).
§ Issue: whether there is some ground of difference that rationally explains the different treatment accorded to married and unmarried persons under MA law?
§ Decision: Providing dissimilar treatment for married and unmarried people who are similarly situated violates the Equal Protection Clause = MA statute UnCon
· EP violation: gets rational basis review and not arbitrary (low standard)
· basically says you have to treat unmarried couples the same as married couples
· so this case rests on a decisional right of privacy
§ Reasoning: w/e right indiv. Has to access bc the rights must be the same for un/married alike
· State cannot outlaw distribution to unmarried but not married persons bc violated EP
§ Summary: Decided under Equal Protection – unmarried people were the classification, it got Rational Basis. Treats a married couple as an association of two individuals, creating an individual right, and a decisional right (the right to decide if they want to bear a child).
o Case Summary
§ Griswold à DP privacy rights require states to allow married couples to use contraception
· Privacy =
o Spatial protects the marital bedroom
o Relationship protects the married couples
· Eisenstadt =
o EP requires states to treat all indivs equally regarding access to contraception
§ Decisional – protects the decision to bear kids and
§ Individual – attaches to married and unmarried indivs
o Bowers — priacy and sexuality
§ Held: anti sodomy law is rationally related to states definition of morality which is a legit state interest
§ Sexuality – state had a legitimate interest in banning sodomy (RB review, DP Case)
o Romer — EP case
§ Ct. struck down legis aimed at homosexuals à EP violation
§ EPC case à RB w/ bite
§ animus is not legit state interest
o Casey: Const. protection for personal deicsions and autonomy to live life
o Lawrence v. Texas: liberation of privacy – modern right to privacy
§ Facts: Petitioners Lawrence and Garner were arrested and convicted after officers came to Lawrence’s house on reported weapons disturbance and found L and G engaging in a sexual act
§ TX statute made it a crime for persons of the same sex to engage in “deviate” sexual conduct w/ each other
§ Issue: whether the petitioners were free as adults to engage in private conduct in the exercise of their liberty under the DP clause of the 14th Amendment? – YES
§ Decision: Convictions reversed
§ Analysis: laws banning sodomy do NOT seem to have been enforced against consenting adults acting in private – State Interest was trying to protect young people from being “victimized” by homosexual “predators”
§ No fundamental DP right to define one’s own persona
o Standard of proof = CCE the
· NOTE: there is no such thing as CL divorce
· Different laws:
o The CLM will travel with you
o if marriage was valid in state it was entered à states will respect it even if their laws don’t recognize it
o if you live in a Non CLM state à then move to a CLM state à they will assumed you have a CLM
o if you live in a Non CLM state à you travel briefly to a state that recognizes CLM à and then you come back to the non CLM state…..
§ some states will say we’ll recognize it since theres no time requirement so long as you meet the 4 CLM elements.
§ Some other states say no — theres policy against recognizing CLM
o PUTATIVE SPOUSE DOCTRINE — informal marriage
§ Definition: An innocent participant who has duly solemnized a matrimonial union which is void b/c of some legal infirmity acquires the status of putative spouse
· Recognizes marriage of an individual who participated in a marriage ceremony in Good Faith, in the belief that a valid marriage took place, and in ignorance of an impediment making the marriage Void/Voidable
o Later Removal of the Impediment = the de facto marriage becomes a valid de jure union
· UMDA: Putative spouse acquires rights conferred upon a legal spouse…
o BUT: The rights of the Putative spouse do NOT supersede the rights of the Legal spouse
§ Elements of PS doctrine
· (i) at least 2 spouse has to have good faith belief that a valid marriage occurred but
· (ii) the marriage was actually either void or voidable (the 5 substantive elements)
§ if PS doctrine applies — you get the benefits of marriage
· Putative spousehood terminates upon a party’s loss of good faith belief that he or she is married
§ In re Estate of Vargas
· H lived a double life as husband and father to 2 separate families, neither of which knew of the other’s existence. Second wife was found to be a putative spouse
· Property interests are protected → court is to resort to equitable principles of property distribution
· PSD: a party to an invalid (void or voidable) marriage who has a GF belief that his or her marriage is valid
· I? is a spouse that acted in GF in an otherwise invalid marriage entitled to any remedy? YES
o an innocent “participant” who has duly solemnized a marriage which is void because of some legal infirmity acquires the status of a putative spouse.