MARRIAGE AND THE CONSTITUTION

Although the constitutional "right to marry" was not securely confirmed by the Supreme Court until its decision in zablocki v. redhail (1978), the Court had spoken of the freedom to marry as a fourteenth amendment "liberty" as early as meyer v. nebraska (1923). Two warren court decisions had also laid the foundations for substantive due process protections of marriage. griswold v. connecticut (1965) had recognized a right of privacy for the marital relationship, and loving v. virginia (1967) had struck down a miscegenation law not only as an unconstitutional racial discrimination but also as a due process violation. The Loving opinion was explicit enough in speaking of the "freedom to marry," but doubt lingered that the Court meant to carry the principle beyond the racial context of the decision.

Zablocki ended the doubt. The Court held invalid, on equal protection grounds, a law forbidding a resident to marry without a judge's approval when he or she had court-ordered child support obligations. The judge could not approve the marriage unless support payments were kept current and the children were unlikely to become public charges. Some concurring Justices thought the law defective on due process grounds. Zablocki 's importance turns not on this doctrinal distinction but on its explicit recognition of marriage as a fundamental interest, requiring strict scrutiny by the courts of direct and substantial governmental interference.

Just two months earlier, however, in Califano v. Jobst (1977), the Court had upheld a portion of the social securityact terminating disability benefits for a disabled dependent child of a wage earner when the child married a person not entitled to benefits under the act, even though that person was also disabled. Much of the discussion in Zablocki 's several opinions was devoted to Jobst. The majority distinguished Jobst as lacking the "directness and substantiality of the interference with the freedom to marry" present in Zablocki. The message was clear: interferences with marriage would demand justification in proportion to their degrees of severity. In Zablocki as in Jobst a money cost was attached to marriage; in Zablocki that cost would be prohibitive in most cases covered by the law.

This version of judicial interest-balancing seems likely to uphold such state restrictions on marriage as blood tests, reasonable age requirements, and insistence on a mentally retarded person's ability to understand the nature of the marriage relationship, even when those restrictions are strictly scrutinized. On principle, the state's power to prohibit polygamy or to deny homosexual couples marriage or some comparable status seems more vulnerable to attack. It would be unrealistic, however, to expect an extension of the constitutional right to marry to homosexuals in the near future. (See sexual preference and the constitution.) And recognition of a constitutional right to multiple marriage is a poor bet even for the distant future.

The extension of constitutional protection to other intimate relationships more closely resembling traditional marriage is already at hand. Griswold 's "privacy" protections have been effectively extended to the unmarried in eisenstadt v. baird (1972) and carey v. population services international (1977). Some states continue to recognize common law marriage, and others have concluded that support obligations may attach to the partners to some informal unions, once the unions end. As the number of unmarried couples living together increases, and as the incidents of unwed union come to resemble those of traditional marriage, formal marriage itself is more clearly seen in its expressive aspects, as a statement of commitment. In these circumstances it makes good sense to think of the right to marry as, in part, a first amendment right.

Kenneth L. Karst
(1986)

(see also: Freedom of Intimate Association; Same-Sex Marriage.)

Bibliography

Karst, Kenneth L. 1980 The Freedom of Intimate Association. Yale Law Journal 89:624–692.

Note 1980 Developments in the Law: The Constitution and the Family. Harvard Law Review 93:1156–1383, 1248–1296.