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Family Law
Wayne State University Law School
Faupel, Marian

What is a family? (LL 157) (2-56)

Ø Any dictionary contains several definitions of the term “family” such as (i) parents and their children, whether dwelling together or not; (ii) any group of persons closely related by blood, as parents, children, uncles, aunts, and cousins; and (iii) the group of persons who form a household under one head.
Ø Traditional families are granted certain legal privileges that other groups may also desire even though they do not formalize the relationship through marriage or are not related by blood. In addition to the problems created by governmental regulation phrased in terms of “family,” the definition of the term has been often litigated in insurance claims. These cases have produced mixed results, but normally the term is applied to those persons who dwell in the same house or constitute a domestic unit.
How State/Government defines family [Alternative Families]

Ø Statutory interpretation:
o Look to legislative intent or record.
o Court’s history—precedential interpretations of the statute
o Plain meaning
o Look to other relevant statutes or on same topic or issue
o If don’t have any of the above, make own interpretation.

Same Sex

Ø Arguments against Same Sex Marriage
o Unnatural—marriage intended for men and women.
o Definition of marriage leaves it impossible.
o Purpose of marriage is procreation (have children).
o Genetic evidence.
o Undermines traditional family values.
o Stability
Ø Counterarguments.
o Simply because view marriage between man and woman is normative does not mean it needs to be that way. Perhaps other societies have different views.
§ Religion—Separation of Church and State.
§ Constitution is supposed to protect everyone’s view.
o Definitions change all the time.
§ Webster’s dictionary is not a good source of history.
o Merely because heterosexual, does not mean that they will produce or want children.
§ There is technology that helps those who can’t have children.
o Family values about love, commitment, longevity, and stability; don’t need to be man and woman for these values.
§ Not necessarily more stability.
o General policy favoring marriage, than whole society would benefit.
§ Society had changes in other areas as well.

Ø Baker v State Same-sex couples applied for marriage licenses in Vermont from town clerk, but were refused as ineligible under the state marriage laws.
o RULE: The state must give the same benefits to same-sex couples as traditional couples, even if it’s not called “marriage” The statute was under inclusive.
o State law can give more benefits, but not less than constitution.
o Full Faith and Credit :Sister states as a default rule are to give credit to judgment made in other sister states.
o Implication: If Vermont allows gay/lesbian couple to get married and are married there and move somewhere else, need to give that couple full benefits.\
o EXCEPTION: Do not need to give full faith and credit when in contravention of the public policy of your state.
§ Includes morality. (For example, divorce and incest).

Ø Braschi v. Stahl Associates Company, 1989 [LL 160] (same sex-family defined) Miguel Braschi lived for about 10 years with another man, in a rent-controlled apartment in NYC listed under Leslie’s name. The two men were deemed a “couple” by their friend and families as well as the building’s superintendent and doormen. Leslie died and (P) Braschi received an eviction notice. P sought an injunction against eviction proceeding and trial court found P was a family member under the noneviction ordinance and granted the preliminary injunction. Appellate division reversed on the ground that the ordinance only protected family members within traditional, legally recognized familial relationships. P appeals. Braschi gets a Preliminary Injunction and says that he is a surviving family member. Statute doesn’t define family. NY court says he is family—they say the purpose is preserve people from sudden eviction and people who have been in a relationship with economic interd

nces. The state police power, through zoning ordinances, is not limited to the elimination of unhealthy conditions; it can create zones where family and youth values and quiet neighborhoods can grow and prosper.
o DISSENT – The ordinance violates equal protection, and unnecessarily burdens P’s 1st Amendment rights of freedom of association and their guaranteed rights of privacy.
o COMMENT – Couples who live together do not have a constitutional right to be treated as a family. In Hollenbaugh v. Carnegie Free Library, the court upheld against equal protection and privacy challenges the dismissal of two public employees who lived together in adultery.

Penobscot Area Housing Development Corp. v. City of Brewer, 1981 [LL 157] (groups living together)the city of Brewer had a zoning ordinance that defined “family” as a “collective body or persons doing their own cooking and living together upon the premises as a separate housekeeping unit in a domestic relationship based upon birth, marriage or other domestic bond as distinguished from a group occupying a boarding house, lodging house, etc.” The Penobscot Development Corp. agreed to buy a house in an area zoned for low-density, single family residential use. They wanted to use the house as a group home for six adult retarded citizens, which it would’ve licensed as a boarding house. High turnover b/c they would only be living there only for a year to a year and a half. The supervisors would work in shifts. D declined to issue an occupancy certificate b/c the proposed use was not a single-family use under the ordinance. The courts upheld this decision and P appeals.