ZABLOCKI v. REDHAIL 434 U.S. 374 (1978)

In loving v. virginia (1967) the Supreme Court had struck down a miscegenation statute flatly forbidding interracial marriage, resting decision on both equal protection and substantive due process grounds. In Zablocki the Court protected the "right to marry" in a setting where race was irrelevant. Wisconsin required a court's permission for the marriage of a resident parent who had been ordered to support a child not in his or her custody. Permission would be granted only when the candidate proved compliance with the support obligation and showed that the children were not likely to become public charges. Because he could not comply with the law, Redhail was denied a marriage license. The Supreme Court held, 8–1, that this denial was unconstitutional.

The case produced six opinions. Justice thurgood marshall, for the majority, rested on equal protection grounds. Marriage was a fundamental interest, protected by the constitutional right of privacy. The Wisconsin law interfered "directly and substantially" with the right to marry and was not necessary to effectuate important state interests. Justice potter stewart concurred on due process grounds. Justice lewis f. powell, also concurring, objected to the Court's strict scrutiny test; such an inquiry would cast doubt on such limits on marriage as "bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests." Using a more relaxed standard of review, he nonetheless found the statute wanting on both due process and equal protection grounds. Justice john paul stevens concurred, calling the law a "clumsy and deliberate legislative discrimination between the rich and poor" whose irrationality violated equal protection. Justice william h. rehnquist, in lone dissent, rejected the notion that marriage was a "fundamental" right and argued for the strict judicial nonscrutiny that had become his trademark.

For all the diversity of the Justices' views, little turns on the choice between equal protection and due process grounds, or on conclusory assertions about the proper standard of review. Zablocki makes clear that significant state interference with the freedom to marry demands correspondingly weighty justification.

Kenneth L. Karst
(1986)