Family Law - Stein - Spring 2003

Family Law - Stein - Spring 2003 - Family Law Outline...

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Family Law Outline Spring 2003 1 I. Intro –– Defining “Family” Family law is primarily state law. One reason –– maybe a big reason –– is that it is messy and the fed. just doesn’t want to deal with it. One point of view is that the family is a mini-state. Another is that family law is social engineering, in the sense that it creates incentives to get into certain kinds of relationships. P ossibly one reason why family law is primarily state law and not federal is that we benefit from experimentation (e.g., some states are trying out covenant marriage). o (Bear in mind, throughout the class, that friendships are good relationships but are wholly unregulated by the state.) Moore v. City of East Cleavland Sup. Ct. 1977 (1245) City ordinance said that “family” only includes spouses and their unmarried children, not more than one married dependent child, and not more than one dependent child of that married dependent child. Violation of the law resulted in criminal penalties. Appellant lived with her son and two grandsons; this was a violation because they were cousins, not brothers. In an earlier case the Court upheld a similar ordinance, but it distinguished it here: the law at issue in that case affected only unrelated individuals and the Court upheld it because it promoted “family needs [and] values.” It was not controlling because due process protects personal choice in matters of marriage and family life. Substantive due Process protects only traditionally-protected matters of family choice, and extended families traditionally deserve protection.The Court 1 seems to have applied intermediate ( or strict?) scrutiny. The law might have failed even rationality review, though, because it is just not rationally designed to prevent overcrowding, etc. (a family could, e.g., have six licensed drivers). The Court agreed that a fundamental interest is at issue here; the question is what snapshot of “family” should be protected . It appears that there is some kind of social engineering going on here, some matter of policy, and the plurality says that “family” includes extended family. Stevens concurred, reasoning that this law is an unjustified property-use restriction and violates due process as a taking without compensation. Burger dissented, reasoning that the city provided an adequate administrative remedy: apply for a variance. Stewart and Rehnquist dissented, arguing that earlier case should control: there is no fundamental right to association or privacy that this law violates. In their view the First Amendment right to association protects only those associations where the purpose is to “promote . .. ideological freedom”; it does not protect freedom of association where the purpose is convenience, economy, etc. Aspects of family life that are constitutionally protected from gov’t interference are the fundamental rights to marry, to have children, and to rear your children. According to Stewart, there is no constitutional right to live in a
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This note was uploaded on 02/14/2008 for the course LAW 7711 taught by Professor Staff during the Spring '02 term at Yeshiva.

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Family Law - Stein - Spring 2003 - Family Law Outline...

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