Family Law Outline
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
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).
(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
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
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
matters of family choice, and extended
families traditionally deserve protection.The Court
seems to have applied intermediate
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
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
.. 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