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

Fall 2007
Professor Vojdik

What is the argument for the courts/states to get involved and/or to not get involved in familial matters?

Marriage, Family, and Privacy in Contemporary America

Section 1: The American Family Today

Proponents of Change

There is a theme of the notion of privacy running thru this course
Many of the cases will look at the relationship b/c the families and the law
Trends that caused changed are:

i. People have stopped remarrying
ii. Women are waiting longer to marry for the first time
iii. Couples live together w/out getting married
iv. Same-sex couples becoming more recognized
v. Reproductive technologies

Should the law recognize these changes or retain the old normative vision?
Changes show a decline of normal, nuclear family
Most areas of law impact families: tax, property, criminal, etc.

Reservations about Change

This is a narrow view of what a family should be
Marriage is the most important child-protecting social institution
Is his view fair in today’s society?
The conjugal view of marriage (the norm) is better than the close relationship model where the adult relationship is the center.

Overall, there is a lack of consensus among the courts on what the law is in promoting a certain vision of family.

Section 2: The Relationship B/t Families and the Law

Public Law

Moore v. City of East Cleveland (1977)

i. Can zoning issues can regulate what is constituted as a family
ii. The City argues that it has a right to zone and protect health and safety
iii. The Ct. says that the city has legit goals, but they don’t serve the ordinance. The city has created a too intrusive regulation, slicing deeply into the family itself. Ct. discusses why people choose to live w/ extended families (economic reasons). Holding—extended family is family.
iv. Practicality of the case—Look at the function of “family”

Problem 1-1

i. Define “family” for a city ordinance.
ii. Should “friends” be included?
iii. Focus on the functions of the family unit
iv. Psychological factors (emotional attachments)
v. A common pooling of assets (would this include roommates? Should this include roommates?)
vi. For what purpose is it being defined?—health, safety, zoning?
vii. What about 2 or 3 women living together with their own children, having escaped abusive relationships?
viii. What about fraternities? What about elderly group homes?
ix. The point—the law is very active in constructing what we recognize as a family, relationships and obligations b/t people and the state.

The Evolution of the Right to Privacy

What is the effect of recognizing the right to privacy?
Pre-evolution of privacy: beating wife went along with privacy. The State wouldn’t interfere w/ stuff at home. It was the “rule of thumb.”
How do you reconcile expansive rights of privacy vs. protecting those who might be subject to violence?
Griswold v. Connecticut (1965) Marital Privacy

i. Married couple was using contraceptives which violated a state statute
ii. USSC holds the statute is not constitutional. Enforcing a statute like this is too extreme—We cannot go into their bedrooms.
iii. The majority goes thru the pre-numbra argument, going thru the amendments and finding zones of privacy. Marriage is older than the Bill of Rights, education, etc. It’s intimate to “a degree of being sacred.”
iv. Background and Context: This case is an example of implicit litigation—bringing people together for a purpose of changing the law. There is almost always a larger litigation strategy, like opening future doors. It was a good starting point to begin with married couples. If they had brought all people, single and married, then there may have been a different outcome. The married couples in this case had devastating stories for why they did not want to have children. Connecticut was the only state in the country left with this statute and the people needed the USSC to say what it did for future opportunities of moving forward.
v. The dissent argued that this change should be done by legislation, not judiciary.
vi. The court will redraw its lines depending on what it wants to avoid. Instead of making an welfare visitation case a “family” issue, they’ll make it a welfare one and say it’s ok to go into the homes then. Are poor people being treated differently?

Eisenstadt v. Baird (1972) Equal Protection of Unmarried People

i. Can single people use contraceptives?
ii. The statute only allowed married people to use contraceptives and they had to get them from doctors. Anyone could get them to stop the spread of diseases.
iii. The Court held that under the EP Clause, there are no grounds for treating married and unmarried people differen

or people. No income/resources to pay child support and may never be able to. The poor is not a suspect class.
iv. Not allowing people to marry doesn’t mean they’ll pay their child support.
v. Reasonable regulations that do not significantly interfere w/ decision to enter into marriage may legitimately be imposed.
vi. What about blood test to get married? Is that an intrusion?
vii. Should marriage focus on personal choice or deeply rooted traditions?

Section 2: Same-Sex Marriage?

Goodridge v. Dept. of Public Health (2003)

May the state state deny the protections, benefits, and obligations conferred by civil marriage to 2 people of same sex? NO
Civil marriage is a wholly secular institution; no religious ceremony is required
Stable relationships are better for society than transient ones.
Marital status makes many benefits automatic.
Marriage has survived several changes. This decision will not destroy marriage. The sky will not fall over this one.
The State wanted rationale basis used, but the court said the statute did not even pass rationale basis.

i. Marriage is for procreation (no, marriage is for permanent commitment to someone, not the begetting of children. And what about heterosexual couples who choose not to have kids?)
ii. Ensure optimal setting for child rearing (there is no factual evidence on this. Same sex couples can provide a happy setting for kids, plus, Mass. has a law that says gays can adopt)
iii. Gays don’t need financial benefits of marriage (what a freaking stereotype)

For those who argue against gay marriage b/c it doesn’t violate EP, how can they say it doesn’t violate EP on the basis of sex preference?
There is a split among gay rights advocators about whether they should go thru the courts or legislators to make change.
What is a suspect class? FN 4—political powerless, born w/ it, history of discrimination, relevant to discrimination