The Fundamental Right to Marry

It has long been the case that courts view the right to marry as a fundamental liberty protected by the substantive due process components of the 5th and 14th Amendments.

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. Skinner v. Oklahoma, 316 U. S. 535, 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Loving v. Virginia, 388 US 1 (1967).

In his dissent in Zablocki, Justice Stewart collected a ton of citations supporting the notion that “freedom of personal choice in matters of marriage and family life is one of the liberties [] protected” by the Due Process Clause of the Fourteenth Amendment.

I do not agree with the Court that there is a “right to marry” in the constitutional sense. That right, or more accurately that privilege,[1] is under our federal system peculiarly one to be defined and limited by state law. Sosna v. Iowa, 419 U. S. 393, 404. A State may not only “significantly interfere with decisions to enter into the marital relationship,”[2] but may in many circumstances absolutely prohibit it. Surely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an examination for venereal disease, or that no one can marry who has a living husband or wife. But, just as surely, in regulating the intimate human relationship of marriage, there is a limit beyond which a State may not constitutionally go.The Constitution does not specifically mention freedom to marry, but it is settled that the “liberty” protected by the Due Process Clause of the Fourteenth Amendment embraces more than those freedoms expressly enumerated in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239Pierce v. Society of Sisters, 268 U. S. 510, 534-535Meyer v. Nebraska, 262 U. S. 390, 399-400. Cf. Shapiro v. Thompson,394 U. S. 618, 629-630United States v. Guest, 383 U. S. 745, 757-758Aptheker v. Secretary of State, 378 U. S. 500, 505Kent v. Dulles, 357 U. S. 116, 127Truax v. Raich, 239 U. S. 33, 41. And the decisions of this Court 393*393 have made clear that freedom of personal choice in matters of marriage and family life is one of the liberties so protected. Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639Roe v. Wade,410 U. S. 113, 152-153Loving v. Virginia, supra, at 12Griswold v. Connecticut, 381 U. S. 479, 485-486Pierce v. Society of Sisters, supraMeyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U. S. 158Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541.

Zablocki v. Redhail, 434 US 374 (1978) (Stewart, J., dissenting).

Historically, there have been efforts to restrict the right to marry on the basis of family ties, race, and sex, so that, for example, there have been efforts to ban “cousin marriage,” interracial marriage, and same-sex marriage.

Arizona had, as of 1957, a strong policy against cousin marriages.

Section 63-108, A.C.A. 1939 (A.R.S. § 25-112), reads as follows:

“Marriages valid by the laws of the place where contracted, are valid in this state; provided, that marriages solemnized in any other state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, and parties residing in this state can not evade its laws as to marriage by going into another state or country for the solemnization of the marriage ceremony.”
Prior to 1942 Section 63-107, supra, provided that marriages by parties of the designated degree of consanguinity were “incestuous and void”, but in that year the section was amended in some respects, among which was to change the wording so as to provide that such marriages are “prohibited and void”. Etta urges that because of this change in the wording we must construe the word “void” as meaning merely “voidable”, and since its validity was never questioned during the existence of the relationship we must recognize it as having been a valid marriage with the result that she is the lawful surviving spouse. It is difficult for us to accept this line of reasoning. The same phraseology that condemns marriage between first cousins as “prohibited and void” applies to marriages between parent and child, grandparent and grandchild, and brother and sister. If we say marriages between first cousins is only voidable we must necessarily say that marriages between parent and child, or brother and sister, are merely voidable. We cannot attribute such an unreasonable intention to the legislature merely because it eliminated the word “incestuous”. We hold, therefore, that in a situation of this kind the legislature meant that such marriages are void in the sense that they shall have no force and effect for any purpose within the State of Arizona.

In re Mortenson’s Estate, 316 P. 2d 1106 (Ariz. 1957)

Louisiana continues to have a strong anti-cousin-marriage statute, but will recognize as valid an Iranian cousin marriage.

If a marriage is valid where contracted, it is presumed to be valid in this state. To rebut that presumption in the case sub judice, Mr. Ghassemi must prove that the recognition of a foreign marriage between first cousins would violate “a strong public policy” of this state.

Clearly, in determining whether Louisiana has “a strong public policy” against recognizing the validity of a foreign marriage between first cousins, it is appropriate to examine our laws governing marriages that are contracted in this state. Louisiana Civil Code article 90, which addresses the impediments of relationships, provides as follows:

A. The following persons may not contract marriage with each other:
(1) Ascendants and descendants.
(2) Collaterals within the fourth degree, whether of the whole or of the half blood.
B. The impediment exists whether the persons are related by consanguinity or by adoption. Nevertheless, persons related by adoption, though not by blood, in the collateral line within the fourth degree may marry each other if they obtain judicial authorization in writing to do so.
The phrase “collaterals within the fourth degree” includes aunt and nephew, uncle and niece, siblings, and first cousins. LSA-C.C. art. 90, comment (b); see also LSA-C.C. art. 901. Pursuant to LSA-C.C. art. 94, a marriage is absolutely null when contracted in this state (1) without a marriage ceremony, (2) by procuration, or (3) in violation of an impediment.

Ghassemi v. Ghassemi, 998 So.2d 731 (La. Ct. App. 2008)

In 1973, Wisconsin enacted a statute prohibiting men who are behind on child support from marrying unless they first obtained a court order (after being “counseled” on their child support obligations). The Supreme Court of the United States ruled that such a restriction on the fundamental right to marriage is unconstitutional.

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, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordon, 430 U. S. 762, 768-770, and n. 13 (1977); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175-176 (1972). 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.

Zablocki v. Redhail, 434 US 374 (1978) (majority opinion of Marshall, J.)

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