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

Family Law Fall 2007
Moore v. City of E. Cleveland (1977)
Facts: Ordinance limits occupancy of a dwelling to members of a single family (certain categories of relation). Appellant lives with her son and grandsons, who are first cousins.
Issue: Whether the ordinance violates the DP clause of the 14th Am?
Analysis: The city argues that in Belle Terre, the court upheld a similar ordinance, but in that case the ordinance only affected non-related individuals. There is no rational basis for this ordinance and courts have long held that the DP clause protects matters or marriage and family. Although the city has legitimate goals, the ordinance does not serve them well. How broadly you define the fundamental liberty is important. The city argued that a grandma has no right to have her grandson life with her. Many states have moved toward looking at families functionally- they function as a family.
One judicial approach to family is Privacy:
Individuals have rights to organize their private rights.
Read cases thinking: What is the relationship between the law and family?
Different types of law concretely affect families: property, tax, criminal, etc.
Coontz article- In the 1960’s, it was accepted that men were the breadwinners, marriage the norm. Now more cohabitation and same sex unions with children. The question becomes should the law change with these changes or should the law try to maintain the normative of a nuclear family.
Cere article-
His view is that a family is conjugal and child-centered. From that, the law is designed to protect children. This is a very narrow view, and he ignores many other important aspects of marriage- property rights, power of atty, etc.
Relationship model- He is critical of de-linking parenthood from marriage.
There is a lack of consensus among the courts about the law’s role in marriage.
What constitutes a family? What obligations are owed? What is the effect of recognizing privacy within the family?
The idea of familial privacy emerged; government should not intervene. Now, that has changed, and the gov’t will intervene in cases of domestic violence etc.
Evolution of the right to privacy
Meyer v. Nebraska- struck down a state statute that barred teaching in the German to kids below eighth grade. The Court stressed the 14th Amendment substantive due process liberty interest.
Pierce v. Society of the Sisters- overturned an OR statute that provided that parents could only satisfy education requirement by using public schools. The court held that the statute “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”
Prince v. Mass.- “the custody, care, and nurture of the child reside first with the parents.”
Griswold v. Connecticut (1965)-
Appellant, a physician and director of planned parenthood was arrested for giving info, instructions, and medical advice to married persons about preventing conception.
Impact litigation- bringing specific litigation for the purpose of changing the law. CT was the only state at this time that still had a ban for married couples, so Planned parenthood wanted to bring a case to challenge this issue. PP first brought Poe v. Ullman, but that case failed.
The law criminalizes the use, also has aiding and abetting statute. Argued that it violated the 14th amendment.
Various guarantees create zones of privacy:
penumbra of 1st amendment- right of association
3rd amendment- no quartering of soldiers
4th amendment- no unreasonable search and seizure
5th amendment- zone of privacy from self-incrimination
9th amendment- enumeration of certain rights shall not be construed to deny or disparage others retained by the people
The law has a maximum destructive impact upon the marital relationship by forbidding the use of contraceptives. The law is unnecessarily broad and invades the area of protected freedoms.
Goldburg Concurs
The concept of liberty protects personal rights that are fundamental, which is supported by prior decisions and the 9th amendment.
The ninth shows the intent of the constitution’s authors that other fundamental personal rights should not be denied simply because they are not listed.
The state does not show that the CT law serves any subordinating state interest which is compelling or necessary. . .
An alternative view is that allowing the 9th amendment to create new rights could create chaos.
Harlan concurs
The proper question is whether the CT statute infringes the DP clause of the 14th amend. because the enactment violates basic values implicit in the concept of ordered liberty. And it does.
Doesn’t require the penumbras used by Douglas.
White concurs
The CT law applied to married couples deprives them of liberty without due process of law.
This requires strict scrutiny and the state’s interest of preventing illicit relationships is not reinforced by the ban of contraceptives for married people.
Black dissentin

to regardless of whether one is married or single.
Lawrence v. Texas (2003)
In Griswold, the court protected the interest of right to privacy with emphasis on the marriage relation.
In Eisenstadt, the court extended the privacy beyond marriage to unmarried person by invalidating a contraceptive law.
In Bowers, the court emphasized that there was a long tradition of laws against sodomy.
To reach a funadamental interest, must have a long-standing deep-rooted tradition.
The majority in Lawrence said that Bowers framed the issues too narrowly.
Lawrence frames the issue as the right to have intimate conduct and a personal bond.
In Planned Parenthood v. Casey, the court confirmed that the law affords constitutional protection to decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
Matters involving the most intimate and personal choices a person may make, choices central to personal dignity and autonomy, are central to a liberty protected by the 14th amendment.
The Texas law prohibits oral or anal sex among individuals of the same sex. Previous statutes simply forbade sodomy.
Additionally, the way it was enforced, to break into someone’s bedroom, was also problematic for the majority opinion.
The history of banning sodomy was to aim at procreative sex. Previous decisions have undermined that school of thought. Anti-sodomy law are actually fairly new- 20th century.
Due Process clause gives homosexual adults the right to engage in their conduct without government intervention.
The majority makes clear that its decision is narrow and only applies to two consenting adults in the privacy of their home. This is not a formal recognition of other rights.
O’Connor concurring
Does not agree in overruling Bowers.
Bases her decision not on the substantive components of the 14th amendment, but on the 14th amendment’s equal protection clause.
She says it’s a more searching form of rational basis.