Family Law 1/12/12 US Dept. of Agriculture v.

Moreno -Facts: Jacinta Moreno lived with Ermina Sanchez, who was not related, and Sanchez's three children. Sanchez provided care to Moreno, who contributed to household living expenses. Moreno satisfied the income requirements for the federal food stamp program, but was denied under Section 3 of the Food Stamp Act of 1964, amended in 1971, which prohibited households with unrelated members from receiving food stamp benefits. Sanchez's food stamp benefits were also to be terminated. Moreno and other households who were denied benefits under Section 3 challenged the statute in the United States District Court for the District of Columbia. The District Court held that Section 3 violated the Due Process Clause of the Fifth Amendment. The United States appealed. -Issue: Does Section 3 of the Food Stamp Act of 1964 violate the equal protection component of the Due Process Clause of the Fifth Amendment? -Holding: In a 7-2 decision, the Court upheld the District Court and maintained that amended Section 3 violated the Fifth Amendment in creating two types of households one in which all members were related and one in which at least one member was unrelated. Justice William J. Brennan, Jr., writing for the majority, acknowledged the interest of Congress in preventing abuse of the Food Stamp program. However, the statute did not fulfill Congress' stated purpose of preventing "hippies" and "hippie communes" from enrolling the food stamp program. Additionally, there existed other measures within the Food Stamp Act that were specifically aimed at preventing abuse of the program. Since the statute "simply does not operate so as rationally to further the prevention of fraud," Moore v. City of East Cleveland Facts: East Cleveland's housing ordinance limited occupancy of a dwelling unit to members of a single family. Part of the ordinance was a strict definition of "family" which excluded Mrs. Inez Moore who lived with her son and two grandsons. Issue: Did the housing ordinance violate the Due Process Clause of the Fourteenth Amendment? Holding: Decision: 5 votes for Moore, 4 vote(s) against, Legal provision: Due Process The four justices in the plurality held that the ordinance violated Moore's rights as it constituted "intrusive regulation of the family" without accruing some tangible state interest. Justice Stevens joined in the judgment and argued that the ordinance was invalid because, by regulating who could live with Moore, it constituted a taking of property without just compensation.

Family Law 1/17/12 Concept of Family -what is the governments role in shaping this?

Village of Belle Terre v. Boraas (1974) is a United States Supreme Court case in which the Court upheld the constitutionality of a residential zoning ordinance that limited the number of unrelated individuals who may inhabit a dwelling. A zoning ordinance in the Village of Belle Terre restricted one-family dwellings to single family, which was defined as [o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit or a maximum of two people who were not related by blood or marriage. The Appellees leased a house zoned for single-family residential to a group of students at nearby State University at Stony Brook. The Village of Belle Terre then brought an order of eviction, claiming that the students did not constitute a family and thus were excluded from that zoned area. Practice Question 1 Answer D tension between Belle Terre and Moreno, the ordinance is identical to bel tarre but closer than college students to a traditional family MARITAL PRIVACY Poe v. Ullman (1961) - was a United States Supreme Court case that held that plaintiffs lacked standing to challenge a Connecticut law that banned the use of contraceptives, and banned doctors from advising their use, because the law had never been enforced. Therefore, any challenge to the law was deemed unripe, because there was no actual threat of injury to anyone who disobeyed the law. The same statute would later be challenged yet again (successfully) in Griswold v. Connecticut (1965). This case focused on the health of the mother as opposed to the idea of marital privacy because the court had not really discerned right of privacy yet. Challenged on due process grounds. Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890) supports the idea of a right of privacy, but no precedential value because its just a law review article. Meyer v. Nebraska - the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade. Pierce v. Society of Sisters - the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties. Yet in both the Meyers and Pierce cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of "liberty."

NAACP v. Alabama there is a penumbra created by the other rights enumerated in the bill of rights which could include privacy. The court has acknowledged this in this case. Harlan s Dissent in Poe I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual s personal life ...the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the state not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. Fundamental concept of ordered liberty based on history, there has never been a history of invading the relationship between man and wife. In order to enforce this the police would have to be able to enter the home to see who is using contraceptives. Griswold v. Connecticut (1964) - Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. The clinic that they opened was only open for 10 days before being shut down. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception. Law was passed in 1879, and there were numerous attempts to repeal this law, many states had already successfully repealed this law. Griswold, unlike Poe, challenged the constitutionality of the entire statute not just the health of the mother. Issue - Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Holding - Legal provision: Due Process - Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. ***Douglas uses the term zone of privacy, the right here is the right to use contraception. He uses the first, third, fourth, fifth, and ninth. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his

detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Fourth and Fifth Amendments were described... as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." ***The concurring opinion is grounded in the 9th amendment. This is an arguable more texted based argument. ***Harlans opinion is founded in due process, basically reworded his dissent in Poe ***Dissenting opinion the people of the state of Connecticut should have their legislators repeal the law. Who has the right of privacy? Under this case, the right is of marital privacy. Notes in the late 1800s the maternal mortality rate was 40% -- huge killer of women pre World War II. Number of women who died giving birth tripled in California in the last year. The chance of death is real, this statute took away a woman s right to choose whether or not to have child. There was a class issue here as well, wealthy people could go to different states or to a non-state affiliated doctor to get the birth control. Poor people were more likely to go to a public clinic. For unmarried people, the only option was to go out of state. An ideal plaintiff in this case would be a person who was white and wealthy to get the courts attention. How does the Harlan dissent affect the majorities argument here? -you want to frame an argument for right to privacy based on his dissent of Harlan Eisenstadt v. Baird (1972) - William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives. This case was based in equal protection. Issue - Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state intrusion by the Fourteenth Amendment? Holding - In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. Married couples were entitled to contraception under the Court's Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw. Thus, the Court did not have to rely on Griswold to invalidate the Massachusetts statute. "If the right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority, "it is the right of the individual, married or single, to be free

from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child." -Right of privacy is beyond marital privacy.

Family Law 1/19/12 Post Eisenstadt view of privacy extended beyond the marital relationship, Roe v. Wade Texas statute made it a crime to procure and abortion that was sought for reasons other than the mothers health criminal punishment for the doctor The statute was similar to many in other states at the time but there was a trend toward broader exceptions than just the mothers health. At common law abortions were allowed pre-quickening of the fetus (first recognizable movement of the fetus mother perceives this). The movement to criminalize abortions is brought by the medical community because the procedure was more dangerous when quickening was occurring. Effect of the Criminalization Framework for Women -women had to go to shady abortion docs if they wanted one -had to go out of state -this resulted in abortion becoming the leading cause of death for women in many jurisdictions -many unwanted children were being born -there was a stigma that was created for getting one of these illegal abortions -length of time needed to get an abortion was greater, effecting the family How do we change this statute? -Legislatively -vote for change -Judicially -need a pregnant woman who wants an abortion but hasn t had one yet, though the case will likely be going on after the child was born -also need a doctor as they will be penalized if they are caught giving one Plaintiff Single woman who was pregnant, her health was not in danger. She initially told her lawyers that she was raped, but lawyers didn t want to create an exception and instead sought to get rid of the entire statute. Legal Arguments statute violates right of privacy, 9th and 14th amendment, and that statute was unconstitutionally vague, also made a liberty argument This is not an equal protection argument because all women are being treated the same regardless of their status.

Government interests -discourage illicit sexual conduct -protecting the mother -protecting prenatal life Strict scrutiny state needs compelling interest which is narrowly tailored Court finds a right of Personal Privacy which includes the abortion decision, the source of this right is liberty Harlan s dissent -as authority the decision cites the 1,4,5,9,14 amendments -court frames this as a fundamental right So are the states interests compelling? -protecting the fetus -when does personhood begin? State says conception, Plaintiff says at birth

The right to privacy is broad enough to encompass abortion, doesn t say right to privacy is a fundamental right

Three Parts of Holding 1. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. 2. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. 3. For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Renquists Dissent this isn t the same kind of privacy that the court had been talking about in previous cases, this is nothing like the protection granted by the 4th amendment search and seizure clause.

Family Law 1/24/12 Griswald Eisenstadt Roe be able to discuss for test Source of Right to Privacy -Roe 14th amendment -Griswald penumbra of 1,4,5,9, 14th Contraception v. Abortion Stillborn Mothers movement/personhood amendment -lookin for validation for carrying child for 9 months death certificate for stillborn baby what about birth certificate? Planned Parenthood of Southeasten PA. v. Casey -PA statute requires women to get husbands signed statement prior to abortion, except medical emergency, husband couldn t be located, wasn t the man who impregnated her, or physically abused her doctor loses license and husband gets damages -Court applies an undue burden test as opposed to strict scrutiny this test asks whether the law places a substantial obstacle or undue burden on a woman s ability to have an abortion Effect on Eisenstadt (pulls right of privacy out of marital relationship) -post Eisenstadt the right of abortion was centered around the individual Gonzales v. Carhart -Federal law bans partial birth abortions; procedural history the statute had been struck down previously because a lack of legislative finding, it lacked specificity as to what types of abortions were banned -Punishment under the federal statute was for the physician, no liability for the mother -The attack on this statute was a facial attack -The opinion is particularly gruesome in its discussion of the abortion process, its mention of death/killing the fetus very rhetorical language -Doctors are portrayed as the enemy here where in Roe they were doing what appeared to be helping the mother -Relationship between doctor and mother is viewed differently here, it seems like the doctor his hiding stuff from the mother -Nurse s description emphasizes the fact that the fetus is living when it was removed Courts Standard -pg 42 does the act protect the legitimate interest of protecting the life of the fetus -pg 43 substantial obstacle/undue burden test majority is pulling away from the strict scrutiny test of Roe Court finds this act does not place an undue burden on womans ability to get an abortion

Act passes the facial challenge and avoids being too vague by noting the anatomical landmark in the statute itself that is the head. -Maternal health is framed on page 43 post abortion mental health ect Bowers v. Hardwick -Criminal ban on consensual sodomy - no sodomy allowed between gay or straight couples, based on the social purity era/crimes against pro-creation -Issue defined framed as all couples right to sodomy; -Held: no fundamental right to sodomy (rational basis review) Lawrence v. Texas -Must be distinguished from Bowers to avoid stare decisis issues - The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. The right to liberty under the Due Process Clause gives them full right to engage in their conduct without intervention of the government. -The holdings in this case are very fact specific -The statute in this case is more directed at homosexuals than the Bower s statute -