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Family Law
Wayne State University Law School
Morrison, Adele M.

Family Law


Winter 2016

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Rational Basis Review: legislation must be rationally related to a legitimate govt interest to be considered valid.

Bare congressional desire to harm a politically unpopular group is NOT a legitimate govt interest
Apply where fundamental rights aren’t at issue.

Intermediate Scrutiny (aka “heightened scrutiny”): legislation must further an important govt interest by means that are substantially related to that interest.

Apply in EP challenges to gender classifications, illegitimacy

Strict Scrutiny: Congress must have passed the law to further a compelling governmental interest, and must have narrowly tailored that law to achieve that interest.

Apply when a law interferes with a fundamental right or suspect classification (race, national origin, religion, alienage, and poverty)

Chapter 1: Private Family Choices: Constitutional Protection for the Family and its Members

A. Evolution of the Right to Privacy

1. The Birth of Privacy

a. The Meanings of Privacy

Griswold v. Connecticut (1965)

CONCISE: The penumbras of the 1st Amendment create right to marital privacy.

Director of Planned Parenthood is arrested for giving contraception to married couples in violation of statute.

Held: There is a constitutional right to marital privacy, marital privacy is protected from govt intrusion

–1st A has been construed to include many rights that aren’t explicitly mentioned in the past, so extended it to privacy (“freedom to associate and privacy in one’s associations”)

Also cites Meyers v. Nebraska

SCOTUS: the marriage relationship is sacred, privacy in marriage predates the BoR

Concurrence: 9th A supports view that the liberty protected by the 5th and 14th As from govt infringement is not restricted to rights specifically mentioned in the first 8 As.

Dissent: The C does not forbid passage of laws that violate our privacy, marital privacy is not enumerated, so not protected.

Notes: What is the state’s interest in statutory ban on contraception? à bc = a way for housewives to assert authority/control over domestic stuff + stop being dependent on men; Concerns w/ technology (are pills/devices safe?); Sex is obscene Comstock law banned mailing anything re: abortion/contraception/porn); Immigration issue: don’t want “race suicide” of whites

Eisenstadt v. Baird (1972)

Baird convicted for distributing contraceptives to unmarried people in violation of statute

Held: Treating unmarried people differently from married people violates the Equal Protection Clause

Unreasonable for the purpose of the statute to be deterrence of premarital sex (could be used to prevent disease, Griswold doesn’t prevent married people from using contraceptives so they can sleep w/ unmarried people)
If purpose of statute is “health,” its too broad—when a dr. is treating a patient, marital status doesn’t matter


Griswold protects privacy of the marital unit
Eisenstadt says married couple isn’t 1 unit, it’s 2 individuals. The right to privacy extends to individuals right to be free from govt intrusion.
Griswold/Eisenstadt point is that you have a right to decide whether to bear a child
Griswold/ Eisenstadt were NOT the first cases to recognize a C right of privacy—it was Meyers v. Nebraska and Pierce v. Soc of Sisters

Burwell v. Hobby Lobby (2014—case not in book, just note on pg 15)

ACA contraception mandate has exemption for religious employers and accommodations for non-profit employers w/ religious objections, but not for-profit employers.

Hobby Lobby sued under Religious Freedom Restoration Act, argued that the ACA mandate 1) substantially burdens the practice of their faith, 2) does not advance a compelling interest, and 3) does not represent the least restrictive means of pursuing the govt’s objective of supplying contraception to women.

Held: Closely held for-profit corporations can be exempt from a law its owners religiously object to if there is a less restrictive means of furthering the laws interest.

The less-restrictive means would be the accommodations made for non-profit employers w/ religious objections.

b. The Roots of Privacy

Meyer v. Nebraska (1923)

Statute forbids teaching kids any language but English. Teacher convicted for teaching a kid German.

Held: One of the liberties afforded by the DP clause is the right to teach your kids whatever you want.

DP = state can’t deprive anyone of life, liberty, or property w/o DP…what is this “liberty?” à SCOTUS extends “liberty” to right of individual to contract, acquire useful knowledge, marry, establish home and raise kids, practice any religion
Govt can’t interfere w/ these liberties under the guise of protecting the public interest by legislation that is arbitrary or isn’t reasonably related to some purpose within the competency of the state to effect.

Notes: What was the purpose of the statute? à “promoting civic development” we don’t want kids speaking other languages bc its “un-American”

Pierce v. Society of Sisters (1925)

The Compulsory Education Act required kids to attend public school til age 16. Society of Sisters = private school and the Act is hurting its business. SCOTUS: the Act violates DP under Meye

lity. Is morality/immorality by itself likely to be enough after Lawrence? When in doubt, make a public safety argument.

Is there a C right to have sex? à Not exactly, but these decisions give you the freedom to make decisions about your sex life without govt interference.

B. When Privacy Rights Conflict

1. Wives and Husbands

Planned Parenthood of Southeastern Pennsylvania v. Casey

2. Children and Parents

Cincinnati Women’s Services, Inc. v. Taft

3. Life and Death

Cruzan v. Director, Missouri Dept. of Health

Chapter 2: Getting Married

A. Intro: Public v. Private Dimensions of Courtship and Marriage

1. Courtship Patterns

2. The Marriage Contract

Maynard v. Hill (1887)

Is marriage a contract between two parties? Or is it a status, regulated by the state? à Marriage is more than a mere contract. Once the parties consent and the marriage is formed, the law steps in and holds the parties to various obligations and liabilities.

Justice, Gender, and the Family (Okin, 1989) Marriage is a “status contract.” Parties aren’t free to choose their partners (can only choose one), and not free to choose the terms.

B. Preparing to Marry: Premarital Controversies

1. Breach of Promise to Marry

Rivkin v. Postal (2001)

Facts: R and P have an affair and have a baby. R buys a house for them and quitclaims it to himself and P. They never discuss plans to marry, but she buys herself an engagement ring and tells her fam they will marry after he divorces his current wife. When they split up, she sues him for breach of promise to marry.

Rule: To establish that there was a promise to marry, P must show either signed/written evidence that the parties were, by mutual agreement, on their way to becoming husband+wife, OR testimony of 2 disinterested witnesses who can substantiate that the promise existed.


P offered the quitclaim deed as the signed/written evidence of the promise à Court said this wasn’t good enough, proper evidence would be app for marriage license, petition to waive age requirement for marriage, correspondence between parties, writing dealing w/ wedding arrangements etc.
P offered testimony by her parents à Court said parents aren’t disinterested parties.