Zablocki v. Redhail, 434 U.S. 374 (1978)

Zablocki v. Redhail is one of a handful of modern Supreme Court cases, the most famous being Loving v. Virginia (1967), exploring the constitutional right to marry. Zablocki stands out, however, because it provokes this central question: In what precise sense is marriage, by some accounts a purely positive creation of the state, a constitutional right?

In Loving, the Court held that a statute banning mixed-race marriages could not withstand the strict scrutiny required under the equal protection clause for classifications based on race. It then briefly added that the statute also violated due process by abridging the ‘‘fundamental freedom’’ to marry.

Zablocki concerned a challenge to a Wisconsin statute that forbade residents with support obligations to noncustodial minor children from marrying unless they could demonstrate, among other things, that they were complying with those obligations. Unlike Loving, Zablocki did not involve a ‘‘suspect class.’’ Nevertheless, the Court, in an opinion by Justice Marshall, still approached the case by way of its equal protection jurisprudence, relying this time on the ‘‘fundamental rights’’ prong of that doctrine. The Court, citing Loving and dicta in both older substantive due process cases and recent cases on the right to privacy, held that the freedom to marry was ‘‘fundamental’’ for equal protection purposes. It then subjected the statute to strict scrutiny and struck it down. Chief Justice Burger wrote a concurring opinion. Justices Stewart, Powell, and Stevens concurred in the judgment. Justice Rehnquist dissented.

Although the Court held squarely that marriage was a fundamental right, it skirted the question whether that right was a basic entitlement, like the right to speech, or only a right of equal access, like the right to vote. Justice Stewart’s opinion faced this issue more directly. He argued that the case did not involve equal protection at all, but rather a liberty protected as a matter of substantive due process. This reading was subsequently confirmed, at least weakly and indirectly, in Turner v. Safley (1987).

Whatever the nature of the right to marry, there remains the problem of defining the scope of the right in view of the many restrictions to which marriage has traditionally been subject. The majority distinguished between incidental regulations, which would not require strict scrutiny, and rules that ‘‘interfere directly and substantially with the right to marry,’’ which would. Justice Stewart responded that there was no ‘‘right to marry’’ as such, in that the law could prohibit some marriages, but that ‘‘in regulating the intimate human relationship of marriage, there is a limit beyond which a State may not constitutionally go.’’ Justice Powell’s concurrence emphasized that the state ‘‘has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people.’’

The issues raised in Zablocki echo in contemporary debates about marriage. Most obviously, they are crucial to whether there might be a right to same-sex marriage. More intriguingly, since some have argued that the government should abolish civil marriage entirely, or replace it with ‘‘civil unions’’ open to all, it now becomes a matter of more than theoretical interest whether marriage is the sort of entitlement to which persons could claim a right even as against an effort at its total, nondiscriminatory, abolition.

PERRY DANE

References and Further Reading

• Cain, Patricia A., Imagine There’s No Marriage, Quinnipiac Law Review 16 (1996): 27.
• Dane, Perry. ‘‘The Intersecting Worlds of Religious and Secular Marriage.’’ In Law and Religion: Current Legal Issues, vol. 4, edited by Richard O’Dair & Andrew Lewis. New York: Oxford University Press, 2001.
• Nolan, Laurence C., The Meaning of Loving: Marriage, Due Process and Equal Protection (1967–1990) as Equality and Marriage, from Loving to Zablocki, Howard Law Journal 41 (1998): 245.
• Sunstein, Cass R., The Right to Marry, Cardozo Law Review 26 (2005): 2081.

Cases and Statutes Cited

• Loving v. Virginia, 388 U.S. 1 (1967)
• Turner v. Safley, 482 U.S. 78 (1987)

See also Due Process; Equal Protection of Law (XIV); Loving v. Virginia, 388 U.S. 1 (1967); Privacy; Right of Privacy; Same-Sex Marriage Legalization; Substantive Due Process; Turner v. Safley, 482 U.S. 78 (1987)