Substantive Restrictions on
Marriage
Why do we care?
Non-relation restrictions
(Incest)

What is this substantive restriction
on marriage and what are the
variations one might find among the
states?
Non-relation restrictions
(Incest)

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How does the state justify this
restriction on marriage?
Note the Snyder article on page 8 –
variations on arguing government
interest and the role of morality
arguments.
Non-relation restrictions
(Incest)

How could one argue that those
interests are not legitimate state
interests or that the substantive
restriction is not tailored to meet
those interests?
Loving v. Virginia (1967)
Constitutional Analysis?
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Equal Protection : Race
(rejected argument of equal
treatment as a class and focused on
individual choices)
Due Process: Liberty Interest
Marriage? Characterized as “a
"basic" civil right of man”
Zablocki v. Redhail (1978)
Describe the Wisconsin
Statute:
Court approval required if:
Non-custodial parent &
EITHER
 Non-payment of support obligation
OR
 Child would be a “public charge”
Due Process Analysis:
1. Characterize the Right

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Is there a fundamental right?
Right to marry is of "fundamental
importance“
What are the origins of this right?
Right to privacy
Due Process Analysis:
1. What level of scrutiny?


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Depends on:
Whether the regulation is a
“significant intrusion” on the right to
marry
If not, reasonableness
If so, "Critical examination"
What is “Critical Examination”?



Comparable to strict
scrutiny
“Sufficiently important”
state interest
“Closely tailored” to
effectuate those
interests.
Equal Protection

Justice Powell and Steven’s preferred
analysis
How does the statute fail?

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Under inclusive:
- law doesn't prohibit additional
financial burden
Over inclusive:
- maybe second spouse will help pay
Other opinions

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
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Stewart (concur): marriage is a privilege
Powell (concur): substantially interfere
test is too fuzzy; need to defer to state
Stevens (concur): economic status is key
Rehnquest (dissent) - deference to state
Why does Mr. Zablocki care?


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Legal sex?: "marriage is only
relationship in which the state of
Wisconsin allows sexual relations to
legally take place“
Practical benefits of marriage?
Symbolic benefits of marriage?
News Flash!


Wisconsin v. Oakley
Father who has refused to pay child
support can be required to avoid
having another child, unless he shows
that he can support that child and his
current children.
Test your understanding:

All persons marrying for the first
time must attend state-licensed
counseling sessions, addressing
management of finances and
interpersonal relations. Sessions cost
$50.00. To obtain license, must have
a certificate of completion.
Same-Sex Marriage

What is this substantive restriction
on marriage and what are the
variations one might find among the
states?
Goodridge v.
Dept. Public
Health
Same-Sex Marriage

How does the state justify this
restriction on marriage?
Same-Sex Marriage

How could one argue that those
interests are not legitimate state
interests or that the substantive
restriction is not tailored to meet
those interests?
Age restrictions

What is this substantive restriction
on marriage and what are the
variations one might find among the
states?
Age restrictions
Age restrictions

How does the state justify this
restriction on marriage?
Age restrictions
n
(problem 2-5)
Monogamy requirements

What is this substantive restriction
on marriage and what are the
variations one might find among the
states?
Monogamy

How does the state justify this
restriction on marriage?
Monogamy

How could one argue that those
interests are not legitimate state
interests or that the substantive
restriction is not tailored to meet
those interests?
Prisoner Marriage

Problem 2-6 p. 124
Capacity

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What are the restrictions?
Are there constitutional issues
raised?
Next Class:
What Kind of a “Contract” is this
anyway? Text pp. 142-48; Charley v.
Fant, 892 S.W.2d 811 (Mo. App. 1995) Mo.
Rev. Stat. 451.010
How would you counsel a couple who want
to know how marriage will change their
obligations?
Read text pp. 870-918