Family-Law-Meyer-Fall06 - FAMILY LAW - FALL 2006 Profs....

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1 FAMILY LAW — FALL 2006 Changing structure of families o Nuclear family did describe most American families in 1950s. Now only 24% of families are nuclear families. Fastest growing type of family is now single person household. Other types include: single-parent families, gay families. o View of nuclear family as only legitimate family structure has changed because the number of people living outside this structure has grown. Four points of potential legal regulation of families: at commencement (marriage) during ongoing marriage (abuse, e.g.) at exit post-exit Definition of family in zoning regulations o In 1974, SCOTUS confronted its first zoning case in Village of Belle Terre v. Boraas. That statute defined family as those related by blood, adoption, or marriage who live together and cook together. The first part is a kinship model – tied by blood or by law; the second part is functional, more about actions. This kept out students, brothels, group homes – about noise and overcrowding and property values. SCOTUS upheld. o Moore v. City of East Cleveland (US 1977), p. 11 Cleveland statute limited definition of family as marital family structured around couple, with limited additions (their parents and immediate unmarried dependents without kids, plus one married dependent with children). In this case, Mrs. Moore was living with her son and his child, and another grandson was coming to live with them – statute subjected Moore to criminal penalties. SCOTUS found that statute violated constitution. “Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14 th Amendment.” “Our decisions establish that the Constitution protects the sanctity of the family.” Moores could have lived in Belle Terre since they were all related by blood. Moore and Belle Terre have same justification – preventing overcrowding, etc. Powell looks to history and tradition – the Moores are a family as we’ve thought about family for years (kinship structure). Powell also focused on family function – they take care of each other in times of crisis (as Mrs. Moore was doing with her motherless grandchild). Split among justices in Moore about whether substantive due process encompasses right to define family. Privacy – families are permeable to state regulation, but protected from it. There must be an important justification for state to enter. When the Court grapples with rights related to families, it tends to invoke “heightened scrutiny” – the question is how high. o
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Family-Law-Meyer-Fall06 - FAMILY LAW - FALL 2006 Profs....

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