Family Law
I. SHIFTING CONCEPTS OF MARRIAGE & THE FAMILY
A. Function vs. Form in a Family Relationship(CB 1-14)
Ø City of Ladue-city zoning law didn’t allow πs to live in this zone. Πs not married, but lived w/ eachother, but acted as ‘family’ in other ways. (Didn’t fit the city’s definition of family. Court upheld zoning law-under R/B review. Π contended that their household was the ‘functional’ equivalent of a natural family
1. Court’s reasoning: family-man and woman living together sharing pleasures and certain responsibilities, does not per se constitute family in the conceptual sense, must be a commitment to permanent relationship and reciprocal obligation to support and care for eachother.
2. This decision supported the traditional or “form” definition of family
Ø Functional Definition-Same Sex Family—Brachiifunctional definition of family over a city’s regulation of rent control-supports a
1. Court’s reasoning: the gay couple functioned as a family and were
considered a ‘family’ under NY’s rent control acts
2. same address, joint accounts, life partners—evidence of a family
relationship
-familial characteristics equals ‘family’ even w/o marriage
Ø California Court of Appeals: a woman who is not a biological or adoptive parent of her former lesbian partner’s children is not entitled, upon dissolution of their relationship to custody of visitation rights. A non-biological parent was not a de facto parent and thus has no claim to a denial of equal protection
Ø Massachusettes-recognized a de facto family created by 2 women and the child born to their 13 year relationship. The women executed a co-parenting agreement which expressly provided for visitation and custody in case of separation
Ø Opposite Sex Unmarried FamiliesàIn MacGregor v Unemployment Insurance Appeals Board, the Sup ct of Calif allowed a worker to receive unemployment benefits after she left her job to travel with her non-marital partner and their child to a new location. Ct said this was her “family”.
Ø Non-marital couples, Landlords and 1st Amendà Some states have statutes which specifically prohibit discrimination based on martial status. Calif Sup ct held that state’s ban against marital status discrimination did not substantially burden the landlord’s free exercise and the landlord must comply with the Fair Employment and Housing act and rent to non-marital couples.
Ø Statutory changes of Family Definitionà California allows stepchildren
and in-laws to inherit, allows expansion of parent child relationship when foster or stepparents are involved. Thus, even if there are blood relatives, persons not sharing blood line of decedent may inherit under the following circumstances: See California Probate Code pg 13.
B. Regulating Marriage and Other Intimate Relationships: The Evolving Constitutional Framework
1. Poly
ht—1st time such a right was recognized
-under this holding, the state can still regulate homosexuality, adultery, and other sexual intimacies, but it cannot acknowledge a marriage and the intimacies inherent in it, then undertake to regulate by means of the criminal law the details of the intimacy
Ø Eisenstadt- The EP clause of the 14th A protects “individuals” and not just married couples rt to choose whether or not to beget or bear a child. This case extended the substantive dp rt to contraception. The Ct rejected the states interest in deterring premarital sex and protecting morals. Also rejected protection of health and safety of citizens argument.
-the statute allowed married people to obtain contraceptives, but didn’t allow unmarried people. Ct struck this down as E/P violation
3. Criminalizing Sexual Activity/State Reg of Sexual Behavior(87-98)
Bowers v. Hardwick- Georgia statute upheld that prohibited oral and anal sex for all persons and imposed criminal sanctions. However, Ga. Only enforced against homosexuals. The Ct held there is not a fundamental rt to homosexual sodomy—not implicit in concept of ordered liberty or deeply
