FAMILY LAW BELMONT FALL 2016
A. Families and the Law:
Moore v. City of East Cleveland (Right of family unit to stay together)
The right to live as a family unit is protected under the Due Process Clause of the 14th Amendment.
The Constitution prevents East Cleveland from standardizing its citizens by forcing all to live in certain narrowly-defined family patterns (limited to the nuclear family rather than family by “blood, marriage, or adoption”).
This is intrusive regulation of family choice. The full scope of the liberty guaranteed by the Due Process Clause is a rational continuum, which includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which recognizes that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. The Constitution protects the sanctity of the family precisely because the institution is deeply rooted in this Nation's history and tradition. 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.
Standards of review:
Generally, government action must rationally further a state interest
Where fundamental right exists, strict judicial scrutiny applies = state must justify its law by showing that it is narrowly tailored to serve a compelling state interest
Here, fundamental right exists: even though over-crowding may be a state interest, court finds ordinance does not adequately serve these goals: numbers more important, thus family of 8 compliant with ordinance would present more of a health risk than this family of four
Different from present case, where everyone related by blood
Take away: Constitutional Levels of Scrutiny
(1) Strict scrutiny: compelling state interest – narrowly tailoring state action
Suspect classifications based on race, national origin, religion, alienage
Classifications burdening fundamental rights also suspect
(2) Intermediate scrutiny:
Classification is substantially related to serving important state interest – e.g., sex, legitimacy
(3) Minimum/rational basis scrutiny:
Classification rationally related to serving a legitimate state interest – e.g., economic.
Griswold v. Connecticut (Privacy of married couple)
: The right of a married couple to privacy is protected by the Constitution.
: The First Amendment has a penumbra where privacy is protected from governmental intrusion, which although not expressly included in the Amendment, is necessary to make the express guarantees meaningful. The association of marriage is a privacy right older than the Bill of Rights, and the State’s effort to control marital activities in this case is unnecessarily broad and therefore impinges on protected Constitutional freedoms.
Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. Right of privacy for families is older than the Bill of Rights. The CT anti-contraception statute conflicts with the exercise of this right and is therefore null and void.
Even though no single amendment alone would be sufficient to support marital privacy, the listed amendments together create a whole that protects institution of marriage.
Eisenstadt v. Baird (Privacy of intimate relationships – contraceptives):
Dissimilar treatment between married and unmarried persons is unconstitutional under equal protection when the dissimilar treatment is unrelated to a rational State objective.
The dissimilar treatment of similarly situated married and unmarried persons under the Massachusetts law violates the Equal Protection Clause of 14th Amendment. First, the deterrence of premarital sex cannot be reasonably regarded as the purpose of the law, because the ban has at best a marginal relation to the proffered objective. Second, if health is the rationale of the law, it is both discriminatory and overbroad. Third, the right to obtain contraceptives must be the same for married and unmarried individuals.
The right of privacy is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction between single and married individuals failed to satisfy the “rational basis test” of the Fourteenth Amendment's Equal Protection Clause. Married couples were entitled to contraception under the Court's Griswold decision.
Lawrence v. Texas (Privacy of sexual intimacy):
While homosexual conduct is not a fundamental right, intimate sexual relationships between consenting adults are protected by the Fourteenth Amendment. As a general rule, the State and the Court should not define the meaning of a relationship or set its boundaries absent injury to a person or abuse of an institution the law protects.
: Yes, intimate sexual conduct, between consenting adults, is a liberty protected under the Substantive Due Process Clause of the 14th Amendment.
The court does not focus on protecting sodomy specifically, but rather, personal relationships. It explains that despite the fact that the statutes in questions purport to only prohibit sex, “Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.”
A homosexual's right to liberty under the Due Process Clause gives him or her the full right to engage in their conduct without intervention of the government. Laws should not target relations between consenting adults in private, as this is what liberty hinges on. It is a promise of the Constitution that there is a realm of personal liberty that the government cannot enter. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Public Morality: in the majority opinion this is not enough of a basis for developing policy.
If there were a rational basis for law prosecuting sodomy (i.e. health reasons), then could be criminalized, but no rational basis exists
Applies rational basis standard of review: state interest = moral disapproval of activity, which is an inadequate reason to uphold
B. CREATING FAMILIES AND LEGAL OBLIGATIONS:
1. Entering Marriage:
Loving v. Virginia (Right of interracial marriage):
Restricting the freedom to marry solely on the basis of race violates the central meaning of the Equal Protection Clause and Substantive Due Process.
The statutes were clearly drawn upon race-based distinctions. The legality of certain behavior turned on the races of the people engaging in it. Equal Protection requires, at least, that classifications based on race be subject to the “most rigid scrutiny.” The Equal Protection Clause of the United States Constitution (Constitution) prohibits classifications drawn by any statute that constitutes arbitrary and invidious discrimination. The fact that Virginia bans only interracial marriages involving whites is proof that the miscegenation st
2) the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Marriage is a right older than the Bill of Rights. Griswold described marriage as “an association for as noble a purpose of any involved in our prior decisions.”
(3) it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
(4) Marriage is a keystone of our social order based on cases and nation’s traditions.
2. Polygamy:
Reynolds v. United States (polygamy is illegal): court upheld criminalization of polygamy against a claim that it punished religious conduct in violation of 1st Amendment
Recent trend against polygamists by enforcing prohibition (largely ignored in second half of 20th century onward)
State v. Holm (polygamy is still illegal):
-Bigamy laws do not violate free exercise or due process under the law.
-A party purports to marry and thus violates bigamy law by participation in a private religious ceremony because the form of that ceremony, although not its intent, resembled what we think of as a wedding.
– An intent to marry for purposes of bigamy does not require an application for a marriage license.
The term “marry” as used in Utah's bigamy statute includes both legally recognized marriages and those that are not state-sanctioned because such a definition is supported by the plain meaning of the term, the language of the bigamy statute and the statute's legislative history and purpose
The prohibition against sexual contact with a minor did not violate equal protection by distinguishing between married and unmarried persons. (Compare to Lawrence v. Texas).
The crux of marriage in our society is not so much the license as the solemnization, viewed in its broadest terms as the steps, whether ritualistic or not, by which two individuals commit themselves to undertake a marital relationship. The presence or absence of a state license does not alter that bond or the gravity of the commitments by Defendant and his wife.
Defendant’s relationship looks like a marriage: cohabitation, children together, and ceremony that establishes the relationship
Court finds it is okay to burden religion as long as there is a general application of the law (i.e. beliefs are protected, but not all actions upon belief)
Defendant argues he has a right to privacy
Present case involves a minor and the public institution of marriage
State interest protected by bans of polygamy: exploitation of children, attempt at conserving state resources, evidence of rivalry and violence between women, and exploitation of women
Canada’s criminal ban on polygamy upheld in 2011: linked with higher rates of domestic violence and sexual abuse for women and girls; higher rates of infant mortality; internalization by children of harmful gender stereotypes; higher levels of conflict; emotional stress and tension arising from rivalry and jealousy among co-wives
