(concurring separately) .
I have no disagreement with the denial of the petition to compel the warden to permit the marriage in this case, nor with the ideas that such matters are within the discretionary powers of the prison authorities in the management and discipline within the prison, nor that in most all cases prisoners should not be permitted to marry. But I make the observation that in my judgment there should be no all inclusive and absolute rule that prisoners cannot marry.
My concern is not so much for the man serving a prison sentence. Yet I make allowance for the fact that there may be some special circumstances where it might be wise and proper to take that into consideration as a part of the entire picture. My apprehension is as to the effect any absolute rule might have upon the rights and interests of others and upon society. Circumstances may exist where, regardless of whether it may or may not be a favor to the prisoner, it may be the wise and expedient course that there be a marriage. It may be for some proper and salutary purpose, such as for example to give legal recognition to an existing de facto family situation, or where it would confer upon a woman or children justly deserved legal status, and/or to protect property rights. For the foregoing reasons I point out the objections of any rigid rule and the desirability of some flexibility to take care of unusual cases if and when they arise.