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Family Law
West Virginia University School of Law
Vojdik, Valorie K.


Take home—open book, notes (that’s it—nothing else: no online research)
2 or 3 questions
1st question = basic fact pattern type
2nd question = proposal for new statute or law and ask to evaluate it, identify problems it’s attempting to address, and to compare that and evaluate it w/ what the existing law is.
It will draw on what we’re doing in class and will examine different state approaches.


i. The Relationship Between Families and the Law

Facts: East Cleveland’s housing ordinance limited a dwelling unit to members of a single family, but defines that family narrowly. Ms. Moore lived in E.Cleveland with her son and two grandsons who are cousins. One grandson’s parent died immediately before living with Ms. Moore. She rec’d a notice of violation citing illegal occupants b/c her family did not fit w/in the ordinance’s definition. When she failed to remove the occupant, the city filed criminal charges.
Issue(s): Whether a city housing ordinance, a criminal offense, violates the D.P. Cl of the 14th by burdening a P & I or liberty interest regarding the law’s definition of a family unit?
Holding: Yes, the institution of family is deeply rooted in this Nation’s history and tradition, and the choice of relative to live together may not lightly be denied by the state. The Const forbids E. Cleveland from standardizing children and adults by forcing all to live in certain narrowly defined family patterns.

ii. The Evolution of Right to Privacy


Impact litigation: bringing specific actions with the intent to change the law; this is the case here b/c Griswold (Dir. Of planned parenthood) brought case with Yale Med. Professor to try to change Conn.’s law.

Griswold v. Connecticut, 381 U.S. 479 (1965), was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives. By a vote of 7-2, the Supreme Court invalidated the law on the grounds that it violated the “right to marital privacy”.
The Supreme Court overturned Griswold’s conviction and invalidated the Connecticut law. Although the Bill of Rights does not explicitly mention “privacy”, Justice William O. Douglas (writing for the majority) ruled that the right was to be found in the “penumbras” of other constitutional protections. (PENUMBRAS: 1st, 3rd, 4th, 5th and 9th Amend.) Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment to defend the Supreme Court’s ruling. (9th Amend. Shows that there are fundamental rights that are important that the court can recognize even if those rights are explicitly named.)
What’s the risk of the Goldberg approach? That whenever something is not explicitly stated a judge can just, at his/her discretion, declare that it’s included in the 9th Amend. Leaves the door open to judicial activism.
Justice John Marshall Harlan II wrote a concurring opinion in which he argued that privacy is protected by the due process clause of the Fourteenth Amendment. Justice Byron White also wrote a concurrence based on the due process clause. White says law doesn’t fit rationality analysis.
14th Amend. = SUBSTANTIVE due process. How does marital relationship fit into ordered liberty? Traditions! What greater tradition is there than marriage.
Two Justices, Hugo Black and Potter Stewart, filed dissents. Justice Black argued that the right to privacy is to be found nowhere in the Constitution. Furthermore, he criticized the interpret

ct of recognizing the right to privacy is. Revis Seegal: wrote “Privacy and the Rule of Law.” She traced the different attitudes of regulating violence between spousal couples. The middle stage = privacy rational: the law closed its eyes to abuse. Then it came up with this libertarian notion (Griswald, etc.) that the law should leave alone families and the state would take a hands-off approach to domestic violence.
What do you do with child abuse or domestic violence if the state DOESN’T intervene? Think about ways to reconcile expansive rights of privacy with the need to protect individuals in the family from invasive, violent behavior. LIBERTARIANISM.

p. 26: Court upheld law in welfare law decision. Upholds laws allowing the state to intrude into the family. Argument: you’re dependent on the state already, so you’re consenting to the state’s control over your lives. Also, you’re causing the government to infringe upon others’ rights by taking their tax money, so you yourself need to cede some of your own rights.


Eisenstadt v. Baird, 405 U.S. 438, was an important United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples and, by implication, the right of unmarried couples to engage in potentially procreative sexual intercourse (though not, as is sometimes argued, the right of unmarried people to engage in any type of sexual intercourse). (1972)