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Family Law
West Virginia University School of Law
Hamilton, Vivian Eulalia

Family Law – Hamilton – Fall 2005
Family Privacy and the Constitution
Overriding Theme – How much should the State become involved in the family?
Basic Constitutional Standards
Due Process
1.       All Non-Fundamental Liberty Interests – apply Rational Review (weigh state interest against private interest, if state’s interest is greater then the state can deprive a person of life, liberty, and propertry)
2.       Fundamental Rights (bill of rights and court defined fundamental rights) – apply Strict Scrutiny (compelling state interest, narrowly tailored (i.e. no other way to achieve ends))
Equal Protection
1.       Suspect Class (race, nationality) – apply Strict Scrutiny (compelling govt. interest that is narrowly tailored, no less restrictive way to do it)
2.       Gender/Immigration – apply Intermediate Scrutiny (important govt. interest, substantially related to the classification)
3.       Non-Suspect Classes – apply Rational Review (weigh state interest against private interest)
10th Amendment (Police Power) – “all rights reserved to the states” (limited by Constitutional Rights)
The Evolution and Birth of the Right to Privacy
Roots of Privacy
Meyer v. Nebraska
·         NB Law – prohibited teaching foreign language to kids who haven’t passed 8th Grade
·         Holding – Unconstitutional, D/P grounds
o   Court applies rational review
§ Depriving the teachers of life, liberty, and property
·         Dicta – right of parents to control kid’s education
Pierce v. Society of Sisters
·         Law – requires kids to go to public schools
·         Holding – Unconstitutional, D/P grounds
o   Court applies rational review
§ Rights deprived – private school’s right to property
·         Dicta – parent’s right to control kid’s education
Meaning of Privacy
Griswold v. CT
·         Law – makes it illegal to use contraceptives
·         Holding – Unconstitutional, Married couples’ use of contraception is protected by the Fundamental Right of marital privacy
o   Marital Privacy Comes from
§ Penumbras of the Bill of Rights (implied rights)
§ Zones of Privacy
§ Concurring – 9th Amendment (bill of rights does not infringe on other rights, not exclusive)
§ Concurring – 14th Alone, don’t need to consider penumbras
§ Scalia Dissent – nothing about privacy in the constitution, this is a matter for the legislative process
o   Court Applies Strict Scrutiny because Marital Privacy is a Fundamental Right
·         Significance – Court establishes that there is a Fundamental Right to Marital Privacy
Eisenstadt v. Baird
·         Law – can’t distribute contraceptives to unmarried people
·         Holding – Unconstitutional, E/P grounds (different treatment of married and unmarried people)
o   Court applies Rational Review because marital status is not a suspect class – no rational basis for different treatment
·         Significance
o   Court concludes that the right to privacy belongs to the individual regardless of marital Status
o   Privacy means both spatial privacy and decisional autonomy
Growth of Privacy
Roe v. Wade
·         The right of privacy encompasses a woman’s right to terminate her pregnancy
·         The right to terminate a pregnancy is a fundamental right
·         Trimester approach
When Privacy Rights Conflict (Husbands and Wives, Children and Parents)
Planned Parenthood v. Danforth
Law – required husband’s consent to get an abortion
Holding – Unconstitutional, state does not have power to stop a woman from terminating a pregnancy, therefore the state cannot delegate that decisional power to the husband
Planned Parenthood v. Casey
Law – requires spousal notification or parental notification if the mother is a minor, included a judicial bypass
Holding – spousal notification unconstitutional but parental notification ok as long as there is a judicial bypass
Court Applies heightened level of scrutiny, Articulates a new Standard for Abortion Cases only (the Undue Burden or Substantial Obstacle Test), abandons the trimester approach of Roe v. Wade
Court avoids calling the right to an abortion a Fundamental Right, they call it a liberty
The Limits on the Right of Privacy (Privacy v. Morality)
Bowers v. Hardwick (overruled by Lawrence v. TX)
Holding – no fundamental right of homosexuals to engage in sodomy
Lawrence v. TX
Law – makes it a crime for individuals of the same sex to have sex
Holding – Unconstitutional on D/P grounds,
Court overrules Bowers v. Hardwick – defined liberty interest too narrowly, targets a group of people
Court reformulates right as the right to choose to enter into personal relationships and the right to enter into those relationships in the privacy of your own home
Court applies Rational Review (because it wouldn’t even survive rational review, not that the court should always apply rational review)
State’s interests – to prevent immoral practice
Immorality is not enough to uphold the law if it is the state’s only interest (individual’s right to privacy/autonomy is more important that tradition
States can still regulate morality under the police power, but morality cannot be the only state interest
Court does not hold that there is a fundamental right to same-sex sex
Privacy located in 14th Amendment
Court avoids E/P analysis to avoid applying strict scrutiny
Parental Autonomy
Meyer v. NB(dicta)
Pierce v. Society of Sisters(dicta)
Prince v. Mass.
Law – child labor laws
Facts – Jehovah’s Witness mother takes children out to distribute pamphlets and sell books at night
Holding – Child labor law is not unconstitutional
Custody/Care of kids resides 1st with the parent, state generally should not intrude on the familial realm (parent’s right to raise child as she sees fit & to raise the child under a religious belief)
BUT, State may interfere sometimes (state interest in child welfare, preventing harm to children)
Wisconsin v. Yoder
Law – required kids to go to school until age 16
Holding – Unconstitutional, D/P grounds
Court applied Strict Scrutiny
Yoder’s Interest – Amish beliefs, teaching children to be part of the Amish community
State’s Interest – child welfare and education
Court found that there must be an exception for Amish children
Difference between Prince and Yoder – Importance of Different State Interests
Prince – protecting children from harm/threat
Yoder – providing education
Troxel v. Granville – Court must accord weight to the decisions of a fit parent because parents have a fundamental right to raise their children as they see fit
Standards for Intervention in the Family
State Child

d knew all of the assets, because she had 10 days to sign the contract, because she was offered and refused independent counsel
3.      UPAA Standard – Prenup. will be valid if there was procedural and substantive fairness
§ Higher standard for substantive fairness – unconscionability will void the contract
§ Procedural Fairness – full and fair disclosure of assets
4.      WV Standard – Prenups. are presumptively valid unless circumstances have substantially changed since the marriage began
Constitutional Limits on State Regulation of Entry into Marriage
Loving v. VA
VA Law – anti-miscegenation law, blacks and whites can’t marry each other
Full Faith & Credit – despite full faith and credit doctrine, marriages existing under the laws of another state will not be recognized under the laws of a state that prohibits interracial marriage because there is a public policy exception to full faith and credit (where another state’s laws violate the public policy of a state, the state does not have to give the other state’s law full faith and credit)
Holding – Unconstitutional, E/P grounds
Even though it appear to apply to both black and whites equally, that application is superficial because it really is aimed to separate races; Race is a suspect class; Racial classifications are subject to strict scrutiny
The right to marry is an important right, Court does not call it a fundamental right
Zablocki v. Redhail
Law – denied a person a marriage license if he failed to pay child support or if his child would become a ward of the state
Holding – Unconstitutional, D/P grounds
Marriage is a fundamental right, so Court applies strict scrutiny
Statute is not narrowly tailored
Under-inclusive – does not prevent parents from incurring other financial obligations
Over-inclusive – applies to people who might marry into money and therefore be able to pay child support with spouse’s money
Turner v. Safley
Law – prohibits inmates from marrying without the approval of the prison superintendent and without compelling reasons to marry
Holding – unconstitutional
Court applies rational review (even under rational review the law fails, does not say this is the right standard to apply)
State interest – prisoners don’t have rights to marry (court rejects this as illegitimate), security and rehabilitation, preventing female prisoners from becoming dependent on men (court also rejects)
Burdens on Marriage – reasonable regulations by states are ok and will only be subject to rational review as long as they create only a hurdle and not an absolute ban; Substantial burdens will be subject to strict scrutiny