Introduction to Family Law: Marriage, Family, and Privacy in Contemporary America

Family Law Outline

Introduction to Family Law: Marriage, Family, and Privacy in Contemporary America

Overview

Importance of Family Law
Most common area in which individuals interact with the law
Being a well-rounded lawyer
On the bar exam
Very common practice for smaller firms
Misconceptions/Vestigial Structures
Originally was thought to apply only to people with a lot of property.
There was thought to be a separate body of law for less well-off people.
Only “legitimate” or “traditional” (i.e., nuclear; 1950s-style) families were the subject of family law.
About marriage and divorce.
Sources of Family Law
Constitution
Statutes
Regulations
Common Law/Judicial Doctrines
 Mostly state law
Purposes of Family Law
Protective Function
Protecting individuals from harm by others
Protecting from physical, economic, etc. harm
Facilitative Function
Helps people arrange their lives as they choose
E.g., premarital agreements, parenting plans, etc.
Arbitral Function
Helping people resolve their conflicts
E.g., divorce, child custody, maintenance, child support, etc.
Expressive Function
“It works by deploying the law’s power to impart ideas through words and symbols. It has two (related) aspects: Law’s expressive abilities may be used, first, to provide a voice in which citizens may speak and, second, to alter the behavior of people the law addresses.”
Symbolic dimensions of marriage, e.g., fault-based divorce
Channeling Function
“Law creates or (more often) supports social institutions which are thought to serve desirable ends.”
Debate about the social institution of marriage and its purposes
Private Welfare Function
Families provide care and material support for their members.
Why is the state concerned about family matters?
Family is where we generate, nurture, and prepare the next generation of citizens. Want to provide a healthy, stabile environment.
The family is the locus of the generative work of society.
Want to protect vulnerable children.
Family is the primary unit that collects and transmits wealth to the next generation.
Family is the primary way in which vulnerable children and adults are to be supported.
Law promotes certain public policy assumptions regarding the family.
Protect rights.
Promote responsible behavior.
Family Models
Types
Nuclear/Traditional Family – Married husband and wife and children
Breakdown in recent history
Alternative Family Arrangements – E.g., same-sex couples with or without children
Nonfamily Households
Single adults living alone
Cohabitating adults not related by marriage, birth, or adoption
Change
Law increasingly permits individuals greater freedom to define their relationships.
Today, there are more single households than married households. Married couples are losing market share.
Traditional family was all about child-rearing. Now, marriage and family are becoming more about the adults.
Conjugal View VS Close Relationship Model
Rising divorce rate since the 1970s
Delayed marriage
Declining number of remarriages
Flood of alternatives to marriage
New reproductive technologies
Childless marriage
Reevaluation of Marriage
Equivalence between cohabitation and marriage
Redefining marriage as a couple-centered bond
Disestablishment or the separation of marriage and state
Challenges to definition of marriage as between one man and one woman
Demographics of Marriage
African Americans marry at much lower rates than whites. They often lack the resources to marry, e.g., marriage license.
Even unmarried Americans still largely subscribe to the idea that marriage is better.
People with higher education are more likely to marry and more likely to stay married. This reinforces the advantages they already enjoy in life.
People that like to marry will not always stay married, but they will marry and divorce and marry again.
Reasons to Marry or Not Marry
Loss of Identity
Putting off marriage because of the possibility of a long, arduous divorce later
Different tax treatments
Health insurance
Pros/Cons of perpetual engagement/cohabitation

Constitutionalization of Family Choices

Defining the Family

Family Associational Rights – 1st Amendment right
Moore v. City of East Cleveland (U.S. 1977)
Facts – Appellant lives in her East Cleveland, Ohio, home with her son and two grandsons (who are first cousins). An East Cleveland housing ordinance limits occupancy of a dwelling unit to members of a single family, but defines “family” in such a way that appellant's household does not qualify. Appellant was convicted of a criminal violation of the ordinance. Her conviction was upheld on appeal over her claim that the ordinance is unconstitutional.
Holding –Ordinance violated Due Process Clause of 14th Amendment.
Searching Review – “When city undertakes intrusive regulation of the family, usual judicial deference to the legislature is inappropriate, as freedom of personal choice in matters of marriage and family life is one of the liberties protected by due process, and thus when government intrudes on choices concerning family living arrangements, Supreme Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”
Implied, not stated expressly
Definitely not rational-basis review
State Goals - “Preventing overcrowding, minimizing traffic and parking congestion, and avoiding undue financial burden on city’s school system.”
Substantive Due ProcessAnalysis
“Careful respect for the teachings of history and solid recognition of the basic values that underlie our society.”
Fundamental Liberty Interest in Defining Family – “The Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”
History and tradition recognize this sort of family. Deep roots.
Serves important societal functions, especially in times of adversity.
Brennan, Concurring
Emphasizes that these extended family arrangements are more prevalent in minority and immigrant communities (i.e., vulnerable communities).
The nuclear family is a fixture of white suburbia.
Brennan noted that there was no evidence that the ordinance in this case was racially motivated. East Cleveland was a black, middle-class, upwardly striving community. The residents wanted to exclude lower-class, “ghetto” families. They wanted to preserve their middle-class, “Leave It to Beaver” community.
Stewart & Rehnquist, Dissenting
State may regulate any household that is not a marital household. Substantive due process only protects the traditional, nuclear family.

Right to Privacy

Meyer v. Nebraska (U.S. 1923)
Substantive Due Process
Law restricting foreign-language education violated theDue Processclause of the14th Amendment.
Pierce v. Society of Sisters (U.S. 1925)
Substantive Due Process
Law providing that parents could satisfy the state’s compulsory education law only by enrolling their children in public schools violated theDue Processclause of the14th Amendment.
“Liberty of parents and guardians to direct the upbringing and education of children under their control.”
Prince v. Massachusetts (U.S. 1944)
“The custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder. There is a private realm of family life which the State cannot enter.”
Poe v. Ullman (U.S. 1961)
Denied certiorari because there was no realistic prospect of enforcement (arrest and prosecution). Parties were seeking declaratory judgment.
Justice Harlan dissented and, reaching the merits, took a broad view of the “liberty” protected by the14th AmendmentDue Process clause to include not merely state violations of one of the first eight amendments which had been held to be “incorporated” in the 14th, but against any law which imposed on “liberty” unjustifiably.
Griswold v. Connecticut (U.S. 1965)
Facts – CT law criminalized using contraceptives or aiding and abetting the use of contraceptives. Doctors could not give contraceptives to anyone, including married couples.
Holding (Douglas) – Violated 14th Am., DPC.
Question – Constitutional violation in denying contraception to married couples?
Strict Scrutiny
(1) Compelling state interest and (2) as narrowly tailored as possible to achieving that interest.
Warranted only for discrete and insular minorities, political breakdown, or if the statute interfered with a constitutionally protected right. Carolene Products.
No constitutional provision addressing marital privacy.
Penumbral Right – Provisions in Bill of Rights have penumbras and innovations that embrace a broader right to privacy. E.g., 3rd, 4th, and 4th Am. are premised on privacy.
Purpose of strict scrutiny is that the government should not interfere with constitutionally protected rights.
CT law fails.
Purported State Interest – Preventing illicit sexual relations, e.g., premarital sex and adultery.
Rationale – Lack of contraceptives may discourage illicit sexual relationships because, if contraceptives are out there, married people might use them during adulterous affairs. Law will curtail premarital sex because, if condoms are not available at home, unmarried teenagers will not be able to steal them.
Other means of achieving state interest. E.g., criminalize adultery; school abstinence programs; etc.
Fundamental Rights – Limit consideration to specific constitutional provisions and construe them generously.
Limits recognition of unenumerated rights to rights that we have recognized as protected. Makes the leap to, e.g., a general right of privacy less problematic.
Fails the Lochner test because there are constitutional provisions that would have supported the right of contract.
Test will not constrain judicial discretion in recognizing unenumerated rights.
Lochner is dead. Deference to legislature on policy matters.
But Right to Contract – May be discernable from Takings Clause and Contracts Clause. Penumbras.
Goldberg, Concurring
Marital privacy is protected by concept of “liberty” in DPC. Due Process Clause alone.
9th Amendment – Rule of construction. Constitution protects unenumerated rights.
Harlan, Concurring
Same as Goldberg, but does not rely on 9th Amendment.
White, Concurring
CT law does not satisfy rational basis. Banning married couples from using contraceptives does not reduce illicit sexual relationships.
Black, Dissenting
Constitution does not mention privacy  no constitutional right.
DPC incorporates only rights specified in the Bill of Rights.
Finding other rights is policymaking—similar to Lochner.
Stewart, Dissenting
[Same]
Wyman v. James (U.S. 1971)
Facts - The plaintiff, a recipient of AFDC, was notified that her home would be visited by a caseworker. The plaintiff offered to supply information relevant to her need for public assistance, but she refused to permit the caseworker to visit her home, and pursuant to New York statutory and administrative provisions, her AFDC benefits were terminated because of such refusal.
Caseworker’s home visit was not a “search” within the meaning of the4th Amendment.
Even if the visit was a search, it was not unreasonable, it served a valid and proper administrative purpose for the dispensation of the AFDC program, it was not an unwarranted invasion of personal privacy, and it violated no right guaranteed by the4th Amendment.
Eisenstadt v. Baird (U.S. 1972)
Facts – After delivering a lecture on overpopulation and contraception, the appellee invited members of the audience to come to the stage and to help themselves to contraceptive articles, and he personally handed a package of contraceptive foam to a young woman. As a result of giving the foam to the woman, he was convicted in a Massachusetts state court for violating a Massachusetts statute which made it a crime to sell, lend, or give away any contraceptive drug, medicine, instrument, or article, except that physicians were permitted to administer or prescribe contraceptive drugs or articles for married persons, and pharmacists were permitted to fill prescriptions for contraceptive drugs or articles for married persons.
Holding – Violated Equal Protection clause of 14th Amendment because it treated married and unmarried persons dissimilarly
State Purposes
Protecting Health – Rejected
Preserving Morals – Rejected
Limiting Contraception – Valid
Deterrence of Premarital Sex – Rejected
No reasonable relation
Punishment for breaking contraception law was worse than punishment for illicit fornication.
“Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.”
Douglas, Concurring
Would also base the decision on the1st Amendment, since passing a contraceptive article to a member of the audience could be regarded as merely a projection of the appellee’s visual aid in conjunction with his lecture, and therefore as a permissible adjunct of free speech.
Burger, Dissenting
The Massachusetts statute validly required, as a health measure, that all contraceptives be dispensed by a physician or pursuant to a physician’s prescription.
The marital status of the recipient of the contraceptive foam had no bearing on the present case.
The appellee was properly convicted for dispensing medicinal material without a license.
Lawrence v. Texas (U.S. 2003)
Substantive Due Process
Right to personal privacy extends to consensual intimate relations between adults of the same sex.

Creating Families and Legal Obligations

Entering Marriage

Constitutional Rights and Substantive Requirements

Generally
Marriage laws express social values on many issues.
Modern Retreat of Marriage Regulation
Transformation of understanding about the central purposes of marriage.
Significant constitutional limitations on government power over family law, as reflected in Supreme Court opinions over the past half century.
Common Features Across Jurisdictions
Bars on bigamous or incestuous marriages
Minimum age for capacity to give consent
Loving v. Virginia (U.S. 1967)
Facts – VA law prohibited a white person from marrying a non-white person. Interracial couple married in DC, returned to VA and pled guilty, and Supreme Court of Appeals of Virginia upheld law.
Holding (Warren)
Invalidated law.
Due Process Clause – Unconstitutional.
Equal Protection Clause – Unconstitutional.
Standard of Review – Not stated explicitly.
Right to Marry – Fundamental right under “liberty” of DPC.
“One of the vital personal rights essential to the orderly pursuit of happiness by free men.”
“One of the ‘basic civil rights of man.’”
Only direct and substantial restrictions on right to marry invoke strict scrutiny.
Permissible Restrictions – Age; siblings; polygamy; same-sex marriage; etc.
Loving – Invidious racial discrimination.
Zablocki v. Redhail (U.S. 1978)
Facts – Under the terms of a Wisconsin statute—providing that any resident of Wisconsin having minor issue not in his custody and which he is under an obligation to support by any court order or judgment may not marry, within Wisconsin or elsewhere, without first obtaining a court’s permission to marry, which permission cannot be granted unless the applicant submits proof of compliance with the support obligation, and, in addition, demonstrates that the children covered by the support order are not then, and are not likely thereafter, to become public charges—a Wisconsin resident, who was under a court order to support his illegitimate child, was denied a marriage license by the County Clerk of Milwaukee County, on the sole ground that he had not obtained a court order granting him permission to marry.
Holding – Unconstitutional under the Equal Protection Clause of the 14th Am.
Searching Review
State Purposes
“The permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations.”
This interest would be satisfied with, e.g., a certificate saying that counseling was received. A man with such a certificate could then marry.
“The welfare of the out-of-custody children is protected.”
No money collection device.
A man could marry another person, and together, their household would enable him to make his child-support payments.
 Important interests
Law failed close-tailoring prong.
Fundamental right to marry. Loving.
“Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.”
Subject to rational-basis review, unlike laws that “interfere directly and substantially” with the choice to marry.
WI law is clearly violative.
Poverty as a suspect class.
Not adopted in subsequent opinions.
Stewart, Concurring
No fundamental right to marry
The Wisconsin statute was unconstitutional because it exceeded the bounds of permissible state regulation of marriage, and invaded the sphere of liberty protected by the14th Amendment’s Due Process clause.
Powell, Concurring
The Wisconsin statute was unconstitutional under either due process or equal protection standards, since the state had not established a justification for the statute’s foreclosure of marriage to many of its citizens solely because of their indigency.
Should not push Loving beyond race.
Marriage is a matter traditionally entrusted to the states, which regulate marriage in many ways, e.g., no incest or bigamy, premarital blood tests, etc.
When the state becomes very intrusive, we must look to Due Process or Equal Protection.
Rehnquist, Dissenting
Under the appropriate standards whereby, for equal protection purposes, the statute had to pass only the rational basis test, and whereby, for purposes of due process, it had only to be shown that the statute bore a rational relation to a constitutionally permissible objective, the Wisconsin statute was a permissible exercise of the state’s power to regulate family life and to assure the support of minor children.
Turner v. Safley (U.S. 1987)
Facts – A suit filed in the United States District Court for the Western District of Missouri challenged the constitutionality of a Missouri prison regulation as practiced at a Missouri prison which housed both male and female inmates: an almost complete ban on inmate marriages.
Holding – Law is unconstitutional.
Inmates’ constitutional rights maybe restricted somewhat.
Failed rational-basis review.
State’s interests in prison security and inmate rehabilitation could be served effectively by other, less restrictive means.

Same-Sex Marriage

Historically, no recognition of same-sex marriage.
Legal in seven jurisdictions as of May 2012.
Reasons for Barring Same-Sex Marriage
Moral disapproval
Children’s welfare
Promoting stability of opposite-sex marriages/avoiding instability of same-sex marriages
Better for children to grow up with both a mother and father
Sexual orientation is NOT a suspect class in Equal Protection jurisprudence.
Quasi-Suspect and Intermediate Scrutiny – Lawrence; Romer.
Constitutional Protections
Bowers v. Hardwick (U.S. 1986)
Upheld a law that criminalized sodomy between consenting adults.
Overruled by Lawrence.
Lawrence v. Texas (U.S. 2003)
Substantive Due Process
Right to personal privacy extends to consensual intimate relations between adults of the same sex. Right to private conduct within home and dignity as a human being.
Moral disapproval of homosexuality is not a legitimate state interest. Society may not use the criminal law to impose its morals.
Overruled Bowers.
Scalia, Dissenting
Lawrence will lead to recognition of same-sex marriage.
Most laws are based on morality.
Goodridge v. Department of Public Health (Mass. 2003)
Same sex couples have a right to marry.
No rational basis for preventing same-sex couples from marrying. Domestic partnerships do not have the same status or emotional saliency as marriages.
Perry v. Brown (9th Cir. 2012)
Holding – Proposition 8 is unconstitutional under the Equal Protection clause of the 14th Amendment.
Standard of Review – Rational Basis
Purported State Interests
Responsible procreation and childbearing
Children are better off when raised by two biological parents.
Marriage reduces the threat of “irresponsible procreation.”
Protecting religious liberty
Protecting children from being taught in public schools that same-sex marriage is the same as traditional marriage.
“The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide anindependentreason for stripping members of a disfavored group of those rights they presently enjoy.”
No legitimate purpose for Proposition 8
Proposition 8 Withdrew a Right
Special Status of “Marriage” Label
Significant cultural importance
“Domestic partnership” is not as good.
Kennedy’s remark that children of same-sex couples want their parents’ unions to be as valid as any other
“In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it.”
“Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place.”
Interstate Recognition of Same-Sex Unions
Majority Rule – “A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.” Rest. 2d Conflicts of Law §283(2).
Not recognized  No state benefits of marriage
41 states have strong public policy against same-sex marriage through laws or constitutional amendments.
Divorce – Must return to the state granting the marriage.
Full Faith and Credit Clause
U.S. Const. art. IV, §1.
Allows some leeway to refuse enforcement on policy grounds.
DOMA
Same-sex marriage valid under state law is not recognized for federal purposes.
States are not required to recognize same-sex marriages performed in other states.
Obama administration has stopped defending DOMA in court because it believes that it is unconstitutional.
United States v. Windsor.

Marriage Regulations