Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Is There a Constitutional Right To Marry?

As an experienced New Jersey family attorney, I keep a close eye on the rapid momentum that gay marriage has gained in just the past few years.  While that area of the law is “red hot” it is also still developing.  Frankly, it is my personal opinion that once Governor Chris Christie leaves office, New Jersey shall pass laws allowing same-sex marriages.  Therefore, as a New Jersey family lawyer, I thought it would be interesting to discuss the genesis of it all; is there a constitutional right to marry?  Let’s explore. 

The 14th amendment to the United States Constitution states that no state shall deprive any person of life, liberty or property without due process of law.  While the fundamental right to custody of one’s child is crucial, the fundamental right to marry is also extremely significant. Marriage is a fundamental right that the government should not be able to deprive any U.S. citizen of. Could you imagine not being able to marry the one that you love? Although the government doesn’t appear to succeed in many instances, it has tried to restrict marriage and deprive individuals of such a fundamental right. The landmark Supreme Court decision of Loving v. Virginia is one of the most powerful cases illustrating a couple’s fundamental right to marry, no matter what color a person may be.

In Loving v. Virginia, 388 U.S. 1 (1967), a white man and a black woman wanted to be married. However, pursuant to Virginia law at the time, interracial marriage was forbidden. The couple was madly in love, and fled Virginia to pursue their marriage. Once legally married in Washington D.C., the couple returned back to Virginia. Upon their return, the state of Virginia sought to ban their marriage and put the couple in jail for one year for violating Virginia law.

The case reached the United States Supreme Court, where it was decided that marriage is one of the basic civil rights of man, fundamental to existence and survival. “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in the Virginia Code, classifications so directly subversive of the principle of equality at the heart of the 14th amendment, is to deprive all the state’s citizens of liberty without due process of law.” The Supreme Court struck down the Virginia statute, and set an example for all other states with similar bans on interracial marriage.

Another important case illustrating the fundamental right to marry is Zablocki v. Redhail, 434 U.S. 374 (1978). In Zablocki, Wisconsin residents were prevented from marrying if they were behind in their child support obligations or if the child to whom they were obligated were likely to become public charges. A class action was brought to have the Wisconsin law struck down as unconstitutional, as it infringed on the residents fundamental right to marry.

The court, after looking to case precedent, decided that the statute was unconstitutional. The statutory classification restricting those who may marry to those who are current in their child support obligations and those whose children will not become public charges clearly interfered directly and substantially with the right to marry. The court held that “when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interest. The Wisconsin statute clearly failed this strict scrutiny analysis and was struck down by the court.              

While these are two significant Supreme Court cases that illustrate one’s fundamental right to marry, stay tuned for my next piece on the evolution of the fundamental right to marry in the context of New Jersey same-sex couples.