Zablocki v. Redhail

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.” Ante, at 386. The Court does not present, however, any principled means for distinguishing between the two types of regulations. Since state regulation in *397this area typically takes the form of a prerequisite or barrier to marriage or divorce, the degree of “direct” interference with the decision to marry or to divorce is unlikely to provide either guidance for state legislatures or a basis for judicial oversight.

I

On several occasions, the Court has acknowledged the importance of the marriage relationship to the maintenance of values essential to organized society. “This Court has long recognized 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.” Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974). Our decisions indicate that the guarantee of personal privacy or autonomy secured against unjustifiable governmental interference by the Due Process Clause “has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967) . . . .” Roe v. Wade, 410 U. S. 113, 152 (1973). “While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage. . . ” Carey v. Population Services International, 431 U. S. 678, 684-685 (1977).

Thus, it is fair to say that there is a right of marital and familial privacy which places some substantive limits on the regulatory power of government. But the Court has yet to hold that all regulation touching upon marriage implicates a “fundamental right” triggering the most exacting judicial scrutiny.1

*398The principal authority cited by the majority is Loving v. Virginia, 388 U. S. 1 (1967). Although Loving speaks of the “freedom to marry” as “one of the vital personal rights essential to the orderly pursuit of happiness by free men,” the Court focused on the miscegenation statute before it. Mr. Chief Justice Warren stated:

“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.” Id., at 12.

Thus, Loving involved a denial of a “fundamental freedom” on a wholly unsupportable basis — the use of classifications “directly subversive of the principle of equality at the heart of the Fourteenth Amendment . . . .” It does not speak to the level of judicial scrutiny of, or governmental justification for, “supportable” restrictions on the “fundamental freedom” of individuals to marry or divorce.

In my view, analysis must start from the recognition of domestic relations as “an area that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U. S. 393, 404 (1975). The marriage relation traditionally has been subject to regulation, initially by the ecclesiastical authorities, and later by the secular state. As early as *399Pennoyer v. Neff, 95 U. S. 714, 734-735 (1878), this Court noted that a State “has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” The State, representing the collective expression of' moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.

“Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.” Maynard v. Hill, 125 U. S. 190, 205 (1888).

State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A “compelling state purpose” inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.

II

State power over domestic relations is not without constitutional limits. The Due Process Clause requires a showing of justification “when the government intrudes on choices concerning family living arrangements” in a manner which is contrary to deeply rooted traditions. Moore v. East Cleveland, 431 U. S. 494, 499, 503-504 (1977) (plurality opinion). Cf. Smith v. Organization of Foster Families, 431 U. S. 816, *400842-847 (1977). Due process constraints also limit the extent to which the State may monopolize the process of ordering certain human relationships while excluding the truly indigent from that process. Boddie v. Connecticut, 401 U. S. 371 (1971). Furthermore, under the Equal Protection Clause the means chosen by the State in this case must bear “ 'a fair and substantial relation' ” to the object of the legislation. Reed v. Reed, 404 U. S. 71, 76 (1971), quoting Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920); Craig v. Boren, 429 U. S. 190, 210-211 (1976) (Powell, J., concurring).

The Wisconsin measure in this case does not pass muster under either due process or equal protection standards. Appellant identifies three objectives which are supposedly furthered by the statute in question: (i) a counseling function; (ii) an incentive to satisfy outstanding support obligations; and (iii) a deterrent against incurring further obligations. The opinion of the Court amply demonstrates that the asserted counseling objective bears no relation to this statute. Ante, at 388-389. No further discussion is required here.

The so-called “collection device” rationale presents a somewhat more difficult question. I do not agree with the suggestion in the Court's opinion that a State may never condition the right to marry on satisfaction of existing support obligations simply because the State has alternative methods of compelling such payments. To the extent this restriction applies to persons who are able to make the required support payments but simply wish to shirk their moral and legal obligation, the Constitution interposes no bar to this additional collection mechanism. The vice inheres, not in the collection concept, but in the failure to make provision for those without the means to comply with child-support obligations. I draw support from Mr. Justice Harlan's opinion in Boddie v. Connecticut. In that case, the Court struck down filing fees for divorce actions as applied to those wholly unable to pay, holding “that a State may not, consistent with the obligations *401imposed on it by the Due Process Clause of the Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.” 401 U. S., at 383. The monopolization present in this case is total, for Wisconsin will not recognize foreign marriages that fail to conform to the requirements of § 245.10.2

The third justification, only obliquely advanced by appellant, is that the statute preserves the ability of marriage *402applicants to support their prior issue by preventing them from incurring new obligations. The challenged provisions of § 245.10 are so grossly underinclusive with respect to this objective, given the many ways that additional financial obligations may be incurred by the applicant quite apart from a contemplated marriage, that the classification “does not bear a fair and substantial relation to the object of the legislation.” Craig v. Boren, supra,, at 211 (Powell, J., concurring). See Eisenstadt v. Baird, 405 U. S. 438, 447-450 (1972); cf. Moore v. East Cleveland, 431 U. S., at 499-500 (plurality opinion).

The marriage applicant is required by the Wisconsin statute not only to submit proof of compliance with his support obligation, but also to demonstrate — in some unspecified way— that his children “are not then and are not likely thereafter to become public charges.” 3 This statute does more than simply “fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action.” Griffin v. Illinois, 351 U. S. 12, 34 (1956) (Harlan, J., dissenting) . It tells the truly indigent, whether they have met their support obligations or not, that they may not marry so long as their children are public charges or there is a danger that their children might go on public assistance in the future.4 Apparently, no other jurisdiction has embraced this approach as a method of reducing the number of children on public assistance. Because the State has not established a justification for *403this unprecedented foreclosure of marriage to many of its citizens solely because of their indigency, I concur in the judgment of the Court.

Although the cases cited in the text indicate that there is a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude, they do not necessarily suggest that the same barrier of justification blocks regulation of the conditions of entry into or the dissolution of the marital bond. See generally Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410, 1429-1432 (1974).

Boddie was an “as applied” challenge; it does not require invalidation of § 245.10 as unconstitutional on its face. In ordinary circumstances, the Court should merely require that Wisconsin permit those members of the appellee class to marry if they can demonstrate “the bona fides of [their] indigency,” 401 U. S., at 382. The statute in question, however, does not contain a severability clause, and the Wisconsin Legislature has made specifio provision for the contingency that “utilization of the procedures [under § 245.10 may be] stayed or enjoined by the order of any court.” In the event of such a stay or injunction after February 1, 1978, 1977 Wis. Laws, ch. 105, § 3 (Wis. Stat. §245.105 (3)), Wis. Legis. Serv. (West 1977), provides that “permission to remarry may likewise be granted to any petitioner who submits clear and convincing proof to the court that for reasonable cause he or she was not able to comply with a previous court obligation for child support.”

The dissenting opinion of Mr. Justice RehNquist suggests that appellee may no longer be “incapable of discharging the arrearage as required by the support order and contributing sufficient funds in the future to remove his child from the welfare rolls.” Post, at 410. There is no basis in the record for such speculation. The parties entered into a stipulation that as of August 1974, a month before appellee was denied a marriage license, appellee “was unemployed and indigent and unable to pay any sum for support of his issue.” App. 21. In its opinion dated August 31, 1976, the District Court noted that “[i]n RecLhail’s case, because of his poverty he has been unable to satisfy the support obligation ordered in the paternity action, and, hence, a state court could not grant him permission to marry.” 418 F. Supp. 1061, 1070 (ED Wis.). Appellant has not challenged the factual predicate of the trial court’s determination, or even intimated that appellee’s financial situation' has improved materially. Such matters, of course, may be inquired into by the local court pursuant to the new procedures that will go into effect after February 1, 1978.

The plaintiff in the companion case, Leipzig v. Pallamolla, 418 F. Supp. 1073 (ED Wis. 1976), had complied with his support obligations but was denied permission to marry because his four minor children received welfare benefits.

Quite apart from any impact on the truly indigent, the statute appears to “confer upon [the judge] a license for arbitrary procedure,” Kent v. United States, 383 U. S. 541, 553 (1966), in the determination of whether an applicant’s children are “likely thereafter to become public charges.” A serious question of procedural due process is raised by this feature of standardless discretion, particularly in light of the hazards of prediction in this area.