dissenting.
I must respectfully dissent from the majority opinion wherein it affirms the judgment of the Delaware Superior Court in holding that the portion of Ind. Code *1206§ 31-1-3-3 (Burns Supp. 1978) is unconstitutional. The decision of the United States Supreme Court in Zablocki v. Redhail, (1978) 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618, dealt with a Wisconsin statute that was far different from Indiana’s. Our Indiana statute provides that a person applying for a marriage license must show that he is supporting any dependent children he has or is contributing to their support in compliance with any court orders issued for their support. As the appellee was advised in this cause by the County Clerk, compliance with the support order was the only requirement under the statute.
The Wisconsin statute went much further. It provided that one who had dependent children not in his custody could not marry except with permission by order of the court which granted the judgment or support order, or the court having divorce jurisdiction in the county where such minor issue resided, or where the marriage license application is made. It further provided that not only did a person in such circumstances have to show that he was complying with court orders of support, but such person must also show that those children he was liable to support were not then, nor were they likely to become, public charges. Several of the Justices observed in Zablocki that under the Wisconsin statute, a plaintiff could be in full compliance with any court orders and be supporting his children and still be subject to denial of a marriage license if his children were receiving some form of welfare. Id. at 434 U.S. 394, 98 S.Ct. 685, 54 L.Ed.2d 636 (Stewart, J., concurring); Id. at 434 U.S. 402, 98 S.Ct. 689, 54 L.Ed.2d 641 (Powell J., concurring); Id. at 434 U.S. 404, 98 S.Ct. 690, 54 L.Ed.2d 642 (Stevens, J., concurring).
No one can doubt that the right to marry is a fundamental liberty protected by the due process clause and is a personal decision protected by the right of privacy. But it is also true, as the majority points out, that marriage is a social relationship subject to state regulation. Entering into or dissolving marriage relationships, and care, support, and custody of minor children incident to those relationships, are all matters of grave concern to society and are considered to be of particular importance to the state in its concern for the welfare of its citizens. This statute is but one of a number involving people in the family relationship.
This statute does not set up economic standards for when a person may or may not be married based upon his or her ability to pay child support. The reference in this statute to support orders is to Ind. Code §§ 31-1-11.5-12, et seq. (Burns Supp. 1978), which establish the standards under which support orders should be set. Among these are the respective financial resources of the custodial and the non-custodial parents along with all other considerations involving status and circumstances of all persons involved. This statute seeks to reach the problem created for society, not by one who is unable to pay support because of poverty, but by ones who refuse to pay support when able to do so thus visiting their responsibility upon someone else; most often, and in greatly increasing numbers, on society itself.
There is no separate class of people being established by this statute who are being treated differently from some other class or who are deprived of some right which other members of society have. The statute seeks to reach those who have abused the rights of marriage and child custody thus creating obligations and responsibilities which they have imposed upon the other members of society. This statute merely asks them to meet their responsibility by taking care of those children they have already produced before beginning all over again. The statute is a permissible exercise of the state’s power to regulate family life and to assure the support of minor children and therefore, under the due process clause, can be shown to bear a rational relation to a constitutionally permissible objective. Dandridge v. Williams, (1970) 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; Ferguson v. Skrupa, (1963) 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93; Williamson v. Lee Optical Co., (1955) 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.