IS MARRIAGE A RIGHT? John Mack

[John Mack is an attorney in the general practice of law in New London, Minnesota.]

A better way of conceptualizing this question is, to what extent are impositions on the right to marry unconstitutional? The word "right" is simply too vast -- moral right? Legal right? De facto right? Natural right? Furthermore, putting the issue in legal/constitutional terms allows us to tap into a long line of cases which discuss the issue in various contexts.

First, there is no general constitutional right to marry. The states are free to prohibit polygamous marriages. See Reynolds. Second, states are free to prohibit underage marriages. Third, states are free to prohibit consanguineous marriages. Fourth, states are free to prohibit certain classes of persons from marrying--some prisoners, probationers, mental defectives, etc. Only very late was it determined that it was unconstitutional to prohibit miscegenation, and then the case was decided on equal protection grounds. The question then will become whether the prohibitions are discriminatory and, if so, whether the discrimination is rational. Probably most restrictions on marriage would be subject to strict scrutiny.

If we look upon questions relating to the right to marry the person you love in this context, things become clearer. Yes, the state can prohibit persons from marrying the one they love if that person falls into certain categories--underage, mentally defective, consanguineous, polygamous, abusive. Maybe, the state can prohibit some people from marrying the persons they love--homosexuals, prisoners, probationers, persons infected with certain diseases, or foreigners, for instance. No, the state cannot prohibit some classes of people otherwise qualified to marry from marrying because of the property in question--miscegenous, divorced, illiterate, etc.

If we look at the list of classes and properties for which it is constitutionally permissible to forbid marriage, we must agree with Tina Turner -- "What's love got to do with it?" It is difficult to think of a single case where the right to marry would be litigated would it make any legal difference whether the parties loved each other (INS cases where the government wants to claim that the marriage is a sham comes the closest). If marriage is to be an institution governed by statutes and judge-made rules, the rights and prohibitions it creates must be determinable without reference to the subjective attitudes of potential marriage partners, or marriage laws would be impossible to administer.

Since this is so, there can hardly be a general right to marry the only kind of person you could desire sexually, because the State has a right to prohibit marriage with respect to certain classes of people regardless of the existence of love or desire. Suppose the only person you can desire sexually is a child. Suppose the only person you can desire sexually is one who is already married. The State can prohibit all such marriages. Conversely, suppose a gay man wishes to marry a lesbian and the clerk knows of their sexual orientation. The clerk could not constitutionally deny them a marriage license based upon the fact that they do not desire each other sexually.

The existence or non-existence of sexual attraction may, of course, be a consideration in determining which classes of people may marry each other. The frustration of the desires or large classes of people, particularly people who vote, is bound to weigh upon legislators and judges. But this is not the same thing as saying that sexual attraction is either a necessary or a sufficient condition for a right to marry. Clearly, it is not.
posted by Eve at 6:03 PM | Link |

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