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Family Law
University of Michigan School of Law
Kochen, Madeline Sara

The Constitutional Right to Marry
·         Loving v. Virginia: 
Facts: Loving white man married black woman in DC and when returned to VA, they were convicted for violating a statute which forbade interracial marriage.
Held: State anti interracial marriage statute, discriminatory on its face, violates EP.
Rejected the argument that it is not an EP violation because they are discriminated against equally
Clause: EP’s purpose is to eliminate invidious racial discrimination.
Scrutiny: Strict b/c RACE
Marriage is one of our “basic civil rights of man” and is fundamental to our “very existence and survival.” The state failed to prove the law is necessary to the achievement of an overriding government interest.
Two Bases for Court’s Decision:
EPC: Racial classifications are suspect and cannot be upheld when there is patently no compelling government interest. Invidious racial discrimination is not a legitimate objective and the purpose is preserve white race
DICTAàcourt addressed this right under DUE PROCESS
Since the court only applied EP, it just means you can’t deprive it based on RACE (or something else that would require strict scrutiny), so it leaves the question open of whether there is a right to marry guaranteed by DP when there is no strict scrutiny under EP
Lex Loci: marriage valid where formed is valid everywhere except public policy
VA violated this rule when it wouldn’t recognize the marriage, so in essence the court was saying, interracial marriage is not sufficient public policy justification
Zablocki v. Redhail
Facts: SC invalidated a statute prohibiting people who had fallen behind in child support to marry (unless current on child support and unlikely kids will be public charages) – court will treat the new marriage as void and provides criminal penalties
Held: THIS Statute significantly interfered with the fundamental right to marry, but REASONABLE regulations on marriage are ok
No à Rational Basis
Yes àsufficiently important state interest and closely tailored
Courts have been flexible
Clause: EP again because only implicated WEALTH and DIVORCED people
An indigency exception may have made this statute more viable
Scrutiny: traditional EP would not have struck down the statute so court comes up with…
Intermediate: RIGOROUS scrutiny – sufficiently important state interests and closely tailored
Must also significantly abridge or burden
Not closely tailored (other methods)
Underinclusive: new W could make financial situation better, you could have new kids with the new wife anyway that you would have to support (this only makes them illegitimate)
No DP? If the court had used this it would have treaded heavily on state power to regulate. There are a lot of state regulations that would be challenged and states would not be able to show a compelling interest for all of them
Age regulations, polygamy bans, incest, etc…)
Fundamental Right to DIVORCE: since we have one to marry, we must have one to divorce too
What is Marriage?
Heterosexual Union for the purpose of sexual intimacy and procreation
Substantive Restrictions to Marriage = Capacity to Marry
Opposite Sexes – some states statutorily define marriage this way
Sexually Intimate Union = homosexual intercourse is often illegal
Separation is defined as ceasing sexual relations
Used to be Marital Rape exceptions
4. AGE 
Voluntary, without fraud or duress
Always ask these questions on the TEST when any substantive restriction comes up:
Is it constitutional under a Zablocki style challenge? Scrutiny?
Does it substantially burden the right to marry?
Does it block marriage for the THIRD person who is trying to marry?
What is the State Interest?
Current Law Prohibits Same Sex Marriage in ALL STATES
Federal Constitution Challenges
Right to Marry
EP and DP
Right of Association
Right to Free Exercise of Religion
State Constitutional Challenges
Some states don’t statutorily define “marriage as between a man and woman”
State Constitutional Guarantees (can be better than federal)
State Equal Rights Amendments
State Protections of Right to PRIVACY and EP
Cases usually arise when gay couples seek and are denied a marriage license for the reason that they “LACK CAPACITY” to marry
Arguments AGAINST Same Sex Marriage
Traditional Definition as “two members of opposite sex”
PROCREATION – marriage is for propogation of species
Child rearing are a purpose – HEALTH and WELFARE of kis
Kids should have 2 gender role models
Immoral – Family Law is a STATEMENT OF MORALITY
Unhealthy (HIV)
Slippery Slope to recognize marriage based on emotions
We’ll have to recognize polygamous and incestuous
Potential for fraud
Implicit in this is the notion that homosexuals CHOOSE this
If it were biological it would look more like race
Will produce more people to be gay
Only a minority of religions recognize this
Undermines gender norms
States still have laws that criminal homosexual sodomy (SC found constitutional in Bowers v. Hardwick)
Arguments FOR Same Sex Marriage
Human beings
Brings Gays into a Committed Monogamous culture and virtues we want to enforce

on and maintenance laws apply
SEPARATE BUT EQUAL status of Marriage
Non-exclusive list:
Probate transfer laws
Group insurance for state employees
Spousal abuse programs
Discrimination based on marital status claims
Workers comp
Victim’s rights compensation
Emergency Medical Care
Family Leave
Public Assistance
Taxes and Estate Taxes
Evidentiary Privileges
Be careful not to turn these into positive rights!!!
Compared to Domestic Partnerships
Make economic benefits available upon marriage and divorce, but not much else
This can apply to persons of the OPPOSITE SEX
Same Substantive requirements
Don’t deal with Emotional Affective Rights/Parenting
Main benefits are access to domestic partners health insurance and other employment conferred benefits
Contracts without the State
Wills, trusts, and other property mechanisms will be enforced by some states
To see which states will honor these K’s look at criminal statutes outlawing (fellatio & homo sodomy)
Adoption of Spouse
One adult can adopt the other to protect ECONOMIC and Affective relationship
One party gets a set of parental rights
Conflict of Laws: State to State RECOGNITION of Domestic Partnerships & Civil Unions?
1. Full Faith and Credit
2. Lex Loci
Rule: Marriage valid where formed is valid everywhere
1. Offends a strong public policy of the recognizing state (Loving revisted)
 Lots of states have enacted statutes that define marriage as between a “man and women” in response to these
2. Fraud – where the parties leave to marry in another state to avoid their state’s laws
age of first cousins is common here
Federal Response: Defense of Marriage Act (DOMA)
1. Federal Definition of Marriage:
“union between a man and woman” (for the purposes of federal law regarding immigration, government benefits, etc…)
Essentially prevents same sex couples from claiming and federal benefits regardless of what state law (civil union or domestic partnership says)
2. State Discretion:
States are NOT required by the FFC to recognize a same sex marriage even if the state where it was formed recognized it