At issue in this
case is the constitutionality of a
Wisconsin statute which provides that
members of a certain class of Wisconsin
residents may not marry, within the
State or elsewhere, without first
obtaining a court order granting permission
to marry. The class is defined by
the statute to include any "Wisconsin
resident having minor issue not in
his custody and which he is under
obligation to support by any court
order or judgment." The statute
specifies that court permission cannot
be granted unless the marriage applicant
submits proof of compliance with the
support obligation and, in addition,
demonstrates that the children covered
by the support order "are not
then and are not likely thereafter
to become public charges." No
marriage license may lawfully be issued
in Wisconsin to a person covered by
the statute, except upon court order;
any marriage entered into without
compliance with 245.10 is declared
void; and persons acquiring marriage
licenses in violation of the section
are subject to criminal penalties.
After being denied
a marriage license because of his
failure to comply with 245.10, appellee
brought this class action under 42
U.S.C. 1983, challenging the statute
as violative of the Equal Protection
and Due Process Clauses of the Fourteenth
Amendment and seeking declaratory
and injunctive relief....
I
Appellee Redhail
is a Wisconsin resident who, under
the terms of 245.10, is unable to
enter into a lawful marriage in Wisconsin
or elsewhere so long as he maintains
his Wisconsin residency. The facts,
according to the stipulation filed
by the parties in the District Court,
are as follows. In January 1972, when
appellee was a minor and a high school
student, a paternity action was instituted
against him in Milwaukee County Court,
alleging that he was the father of
a baby girl born out of wedlock. After
he appeared and admitted that he was
the child's father, the court entered
an order adjudging appellee the father
and ordering him to pay $109 per month
as support for the child until she
reached 18 years of age. From May
1972 until August 1974, appellee was
unemployed and indigent, and consequently
was unable to make any support payments.
On September 27,
1974, appellee filed an application
for a marriage license with appellant
Zablocki, the County Clerk of Milwaukee
County, and a few days later the application
was denied on the sole ground that
appellee had not obtained a court
order granting him permission to marry,
as required by 245.10. Although appellee
did not petition a state court thereafter,
it is stipulated that he would not
have been able to satisfy either of
the statutory prerequisites for an
order granting permission to marry.
First, he had not satisfied his support
obligations to his illegitimate child,
and as of December 1974 there was
an arrearage in excess of $3,700.
Second, the child had been a public
charge since her birth, receiving
benefits under the Aid to Families
with Dependent Children program....
II
In evaluating 245.10
(1), (4), (5) under the Equal Protection
Clause, "we must first determine
what burden of justification the classification
created thereby must meet, by looking
to the nature of the classification
and the individual interests affected."
Since our past decisions make clear
that the right to marry is of fundamental
importance, and since the classification
at issue here significantly interferes
with the exercise of that right, we
believe that "critical examination"
of the state interests advanced in
support of the classification is required.
The leading decision
of this Court on the right to marry
is Loving v. Virginia (1967). In that
case, an interracial couple who had
been convicted of violating Virginia's
miscegenation laws challenged the
statutory scheme on both equal protection
and due process grounds. The Court's
opinion could have rested solely on
the ground that the statutes discriminated
on the basis of race in violation
of the Equal Protection Clause. But
the Court went on to hold that the
laws arbitrarily deprived the couple
of a fundamental liberty protected
by the Due Process Clause, the freedom
to marry. The Court's language on
the latter point bears repeating:
"The freedom to marry has long
been recognized as one of the vital
personal rights essential to the orderly
pursuit of happiness by free men.
Marriage is one of the `basic civil
rights of man,' fundamental to our
very existence and survival."
Although Loving arose
in the context of racial discrimination,
prior and subsequent decisions of
this Court confirm that the right
to marry is of fundamental importance
for all individuals....
More recent decisions
have established that the right to
marry is part of the fundamental "right
of privacy" implicit in the Fourteenth
Amendment's Due Process Clause. In
Griswold v. Connecticut (1965), the
Court observed: "We deal with
a right of privacy older than the
Bill of Rights - older than our political
parties, older than our school system.
Marriage is a coming together for
better or for worse, hopefully enduring,
and intimate to the degree of being
sacred. It is an association that
promotes a way of life, not causes;
a harmony in living, not political
faiths; a bilateral loyalty, not commercial
or social projects. Yet it is an association
for as noble a purpose as any involved
in our prior decisions."
Cases subsequent
to Griswold and Loving have routinely
categorized the decision to marry
as among the personal decisions protected
by the right of privacy....
It is not surprising
that the decision to marry has been
placed on the same level of importance
as decisions relating to procreation,
childbirth, child rearing, and family
relationships. As the facts of this
case illustrate, it would make little
sense to recognize a right of privacy
with respect to other matters of family
life and not with respect to the decision
to enter the relationship that is
the foundation of the family in our
society. The woman whom appellee desired
to marry had a fundamental right to
seek an abortion of their expected
child, or to bring the child into
life to suffer the myriad social,
if not economic, disabilities that
the status of illegitimacy brings.
Surely, a decision to marry and raise
the child in a traditional family
setting must receive equivalent protection.
And, if appellee's right to procreate
means anything at all, it must imply
some right to enter the only relationship
in which the State of Wisconsin allows
sexual relations legally to take place.
By reaffirming the
fundamental character of the right
to marry, we do not mean to suggest
that every state regulation which
relates in any way to the incidents
of or prerequisites for marriage must
be subjected to rigorous scrutiny.
To the contrary, reasonable regulations
that do not significantly interfere
with decisions to enter into the marital
relationship may legitimately be imposed.
The statutory classification at issue
here, however, clearly does interfere
directly and substantially with the
right to marry.
Under the challenged
statute, no Wisconsin resident in
the affected class may marry in Wisconsin
or elsewhere without a court order,
and marriages contracted in violation
of the statute are both void and punishable
as criminal offenses. Some of those
in the affected class, like appellee,
will never be able to obtain the necessary
court order, because they either lack
the financial means to meet their
support obligations or cannot prove
that their children will not become
public charges. These persons are
absolutely prevented from getting
married. Many others, able in theory
to satisfy the statute's requirements,
will be sufficiently burdened by having
to do so that they will in effect
be coerced into forgoing their right
to marry. And even those who can be
persuaded to meet the statute's requirements
suffer a serious intrusion into their
freedom of choice in an area in which
we have held such freedom to be fundamental.
III
When a statutory
classification significantly interferes
with the exercise of a fundamental
right, it cannot be upheld unless
it is supported by sufficiently important
state interests and is closely tailored
to effectuate only those interests.
Appellant asserts that two interests
are served by the challenged statute:
the permission-to-marry proceeding
furnishes an opportunity to counsel
the applicant as to the necessity
of fulfilling his prior support obligations;
and the welfare of the out-of-custody
children is protected. We may accept
for present purposes that these are
legitimate and substantial interests,
but, since the means selected by the
State for achieving these interests
unnecessarily impinge on the right
to marry, the statute cannot be sustained.
There is evidence
that the challenged statute, as originally
introduced in the Wisconsin Legislature,
was intended merely to establish a
mechanism whereby persons with support
obligations to children from prior
marriages could be counseled before
they entered into new marital relationships
and incurred further support obligations.
Court permission to marry was to be
required, but apparently permission
was automatically to be granted after
counseling was completed. The statute
actually enacted, however, does not
expressly require or provide for any
counseling whatsoever, nor for any
automatic granting of permission to
marry by the court, and thus it can
hardly be justified as a means for
ensuring counseling of the persons
within its coverage. Even assuming
that counseling does take place -
a fact as to which there is no evidence
in the record - this interest obviously
cannot support the withholding of
court permission to marry once counseling
is completed.
With regard to safeguarding
the welfare of the out-of-custody
children, appellant's brief does not
make clear the connection between
the State's interest and the statute's
requirements. At argument, appellant's
counsel suggested that, since permission
to marry cannot be granted unless
the applicant shows that he has satisfied
his court-determined support obligations
to the prior children and that those
children will not become public charges,
the statute provides incentive for
the applicant to make support payments
to his children. This "collection
device" rationale cannot justify
the statute's broad infringement on
the right to marry.
First, with respect
to individuals who are unable to meet
the statutory requirements, the statute
merely prevents the applicant from
getting married, without delivering
any money at all into the hands of
the applicant's prior children. More
importantly, regardless of the applicant's
ability or willingness to meet the
statutory requirements, the State
already has numerous other means for
exacting compliance with support obligations,
means that are at least as effective
as the instant statute's and yet do
not impinge upon the right to marry.
Under Wisconsin law, whether the children
are from a prior marriage or were
born out of wedlock, court-determined
support obligations may be enforced
directly via wage assignments, civil
contempt proceedings, and criminal
penalties.
There is also some
suggestion that 245.10 protects the
ability of marriage applicants to
meet support obligations to prior
children by preventing the applicants
from incurring new support obligations.
But the challenged provisions of 245.10
are grossly underinclusive with respect
to this purpose, since they do not
limit in any way new financial commitments
by the applicant other than those
arising out of the contemplated marriage.
The statutory classification is substantially
overinclusive as well: Given the possibility
that the new spouse will actually
better the applicant's financial situation,
by contributing income from a job
or otherwise, the statute in many
cases may prevent affected individuals
from improving their ability to satisfy
their prior support obligations....
The statutory classification
thus cannot be justified by the interests
advanced in support of it....
MR. JUSTICE POWELL,
concurring in the judgment.
I concur in the judgment
of the Court that Wisconsin's restrictions
on the exclusive means of creating
the marital bond, erected by Wis.
Stat. 245.10 (1), (4), and (5) (1973),
cannot meet applicable constitutional
standards. I write separately because
the majority's rationale sweeps too
broadly in an area which traditionally
has been subject to pervasive state
regulation. The Court apparently would
subject all state regulation which
"directly and substantially"
interferes with the decision to marry
in a traditional family setting to
"critical examination" or
"compelling state interest"
analysis. Presumably, "reasonable
regulations that do not significantly
interfere with decisions to enter
into the marital relationship may
legitimately be imposed." The
Court does not present, however, any
principled means for distinguishing
between the two types of regulations....
MR. JUSTICE REHNQUIST,
dissenting.
I substantially agree
with my Brother POWELL's reasons for
rejecting the Court's conclusion that
marriage is the sort of "fundamental
right" which must invariably
trigger the strictest judicial scrutiny.
I disagree with his imposition of
an "intermediate" standard
of review, which leads him to conclude
that the statute, though generally
valid as an "additional collection
mechanism" offends the Constitution
by its "failure to make provision
for those without the means to comply
with child-support obligations."
I would view this legislative judgment
in the light of the traditional presumption
of validity. I think that under the
Equal Protection Clause the statute
need pass only the "rational
basis test," and that under the
Due Process Clause it need only be
shown that it bears a rational relation
to a constitutionally permissible
objective. The statute so viewed is
a permissible exercise of the State's
power to regulate family life and
to assure the support of minor children,
despite its possible imprecision in
the extreme cases envisioned in the
concurring opinions....
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