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ZABLOCKI v. REDHAIL
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United States Supreme Court

ZABLOCKI v. REDHAIL(1978)

No. 76-879

Argued: October 4, 1977

Decided: January 18, 1978

Wisconsin statute providing that any resident of that State "having minor issue not in his custody
and which he is under obligation to support by any court order or judgment" may not marry
without a court approval order, which cannot be granted absent a showing that the support
obligation has been met and that children covered by the support order "are not then and are not
likely thereafter to become public charges," held to violate the Equal Protection Clause of the
Fourteenth Amendment. Pp. 383-391.

(a) Since the right to marry is of fundamental importance, e. g., Loving v. Virginia, 388 U.S. 1
,
and the statutory classification involved here significantly interferes with the exercise of that
right, "critical examination" of the state interests advanced in support of the classification is
required. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312
, 314. Pp. 383-387.

(b) The state interests assertedly served by the challenged statute unnecessarily impinge on
the right to marry. If the statute is designed to furnish an opportunity to counsel persons with
prior child-support obligations before further such obligations are incurred, it neither expressly
requires counselling nor provides for automatic approval after counseling is completed. The
statute cannot be justified as encouraging an applicant to support his children. By the
proceeding the State, which already possesses numerous other means for exacting
compliance with support obligations, merely prevents the applicant from getting married,
without ensuring support of the applicant's prior children. Though it is suggested that the
statute protects the ability of marriage applicants to meet prior support obligations before
new ones are incurred, the statute is both underinclusive (as it does not limit new financial
commitments other than those arising out of the contemplated marriage) and overinclusive
(since the new spouse may better the applicant's financial situation). Pp. 388-390.

418 F. Supp. 1061, affirmed. [434 U.S. 374, 375]

 
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE
and BLACKMUN, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 391. STEWART, J.,
post, p. 391, POWELL, J., post, p. 396, and STEVENS, J., post, p. 403, filed opinions concurring in
the judgment. REHNQUIST, J., filed a dissenting opinion, post, p. 407.

Ward L. Johnson, Jr., Assistant Attorney General of Wisconsin, argued the cause for appellant.
With him on the briefs were Bronson C. La Follette, Attorney General, Robert P. Russell, and John
R. Devitt.

Robert H. Blondis argued the cause and filed briefs for appellee.
*
 

MR. JUSTICE MARSHALL delivered the opinion of the Court.

At issue in this case is the constitutionality of a Wisconsin statute, Wis. Stat. 245.10 (1), (4), (5)
(1973), which provides that members of a certain class of Wisconsin residents may not marry,
within the State or elsewhere, without first obtaining a court order granting permission to marry.
The class is defined by the statute to include any "Wisconsin resident having minor issue not in
his custody and which he is under obligation to support by any court order or judgment." The
statute specifies that court permission cannot be granted unless the marriage applicant submits
proof of compliance with the support obligation and, in addition, demonstrates that the children
covered by the support order "are not then and are not likely thereafter to become public
charges." No marriage license may lawfully be issued in Wisconsin to a person covered by the
statute, except upon court order; any marriage entered into without compliance with 245.10 is
declared void; and persons acquiring marriage licenses in violation of the section are subject to
criminal penalties.
1
 
[434 U.S. 374, 376]
 

After being denied a marriage license because of his failure to comply with 245.10, appellee
brought this class action under 42 U.S.C. 1983, challenging the statute as violative [434 U.S. 374,
377]
 
of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and
seeking declaratory and injunctive relief. The United States District Court for the Eastern District
of Wisconsin held the statute unconstitutional under the Equal Protection Clause and enjoined
its enforcement. 418 F. Supp. 1061 (1976). We noted probable jurisdiction, 429 U.S. 1089
(1977),
and we now affirm.

Appellee Redhail is a Wisconsin resident who, under the terms of 245.10, is unable to enter into a
lawful marriage in Wisconsin or elsewhere so long as he maintains his Wisconsin residency. The
facts, according to the stipulation filed by the parties in the District Court, are as follows. In
January 1972, when appellee was a minor and a high school student, a paternity action was
instituted against him in Milwaukee County Court, alleging that he was the father of a baby girl
[434 U.S. 374, 378]
 
born out of wedlock on July 5, 1971. After he appeared and admitted that he
was the child's father, the court entered an order on May 12, 1972, adjudging appellee the father
and ordering him to pay $109 per month as support for the child until she reached 18 years of
age. From May 1972 until August 1974, appellee was unemployed and indigent, and
consequently was unable to make any support payments.
2
 

On September 27, 1974, appellee filed an application for a marriage license with appellant
Zablocki, the County Clerk of Milwaukee County,
3
and a few days later the application was
denied on the sole ground that appellee had not obtained a court order granting him permission
to marry, as required by 245.10. Although appellee did not petition a state court thereafter, it is
stipulated that he would not have been able to satisfy either of the statutory prerequisites for an
order granting permission to marry. First, he had not satisfied his support obligations to his
illegitimate child, and as of December 1974 there was an arrearage in excess of $3,700. Second,
the child had been a public charge since her birth, receiving benefits under the Aid to Families
with Dependent Children program. It is stipulated that the child's benefit payments were such
that she would have been a public charge even if appellee had been current in his support
payments.

On December 24, 1974, appellee filed his complaint in the District Court, on behalf of himself and
the class of all Wisconsin residents who had been refused a marriage license pursuant to 245.10
(1) by one of the county clerks in Wisconsin. Zablocki was named as the defendant, individually
[434 U.S. 374, 379]
 
and as representative of a class consisting of all county clerks in the State.
The complaint alleged, among other things, that appellee and the woman he desired to marry
were expecting a child in March 1975 and wished to be lawfully married before that time. The
statute was attacked on the grounds that it deprived appellee, and the class he sought to
represent, of equal protection and due process rights secured by the First, Fifth, Ninth, and
Fourteenth Amendments to the United States Constitution.

A three-judge court was convened pursuant to 28 U.S.C. 2281, 2284. Appellee moved for
certification of the plaintiff and defendant classes named in his complaint, and by order dated
February 20, 1975, the plaintiff class was certified under Fed. Rule Civ. Proc. 23 (b) (2).
4
After
the parties filed the stipulation of facts, and briefs on the merits, oral argument was heard in the
District Court on June 23, 1975, with a representative from the Wisconsin Attorney General's
office participating in addition to counsel for the parties.

The three-judge court handed down a unanimous decision on August 31, 1976. The court ruled,
first, that it was not required to abstain from decision under the principles set forth in Huffman v.
Pursue, Ltd., 420 U.S. 592
(1975), and Younger v. Harris, 401 U.S. 37
(1971), since there was no
pending state-court proceeding that could be frustrated by the declaratory and injunctive relief
requested.
5
Second, the court held [434 U.S. 374, 380]
 
that the class of all county clerks in
Wisconsin was a proper defendant class under Rules 23 (a) and (b) (2), and that neither Rule 23
nor due process required prejudgment notice to the members of the plaintiff or the defendant
class.
6
 
[434 U.S. 374, 381]
 

On the merits, the three-judge panel analyzed the challenged statute under the Equal Protection
Clause and concluded that "strict scrutiny" was required because the classification created by
the statute infringed upon a fundamental right, the right to marry.
7
The court then proceeded to
evaluate the interests advanced by the State to justify the statute, and, finding that the
classification was not necessary for the achievement of those interests, the court held the
statute invalid and enjoined the county clerks from enforcing it.
8
 

Appellant brought this direct appeal pursuant to 28 U.S.C. 1253, [434 U.S. 374, 382]
 
claiming
that the three-judge court erred in finding 245.10 (1), (4), (5) invalid under the Equal Protection
Clause. Appellee defends the lower court's equal protection holding and, in the alternative, urges
affirmance of the District Court's judgment on the ground that the statute does not satisfy the
requirements of substantive due process. We agree with the District Court that the statute
violates the Equal Protection Clause.
9
 
[434 U.S. 374, 383]
 

II

In evaluating 245.10 (1), (4), (5) under the Equal Protection Clause, "we must first determine what
burden of justification the classification created thereby must meet, by looking to the nature of
the classification and the individual interests affected." Memorial Hospital v. Maricopa County,
415 U.S. 250, 253
(1974). Since our past decisions make clear that the right to marry is of
fundamental importance, and since the classification at issue here significantly interferes with
the exercise of that right, we believe that "critical examination" of the state interests advanced in
support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U.S.
307, 312
, 314 (1976); see e. g., San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17
(1973).

The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U.S. 1
(1967). In
that case, an interracial couple who had been convicted of violating Virginia's miscegenation
laws challenged the statutory scheme on both equal protection and due process grounds. The
Court's opinion could have rested solely on the ground that the statutes discriminated on the
basis of race in violation of the Equal Protection Clause. Id., at 11-12. But the Court went on to
hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due
Process Clause, the freedom to marry. The Court's language on the latter point bears repeating:

"The freedom to marry has long been recognized as one of the vital personal rights essential
to the orderly pursuit of happiness by free men.

"Marriage is one of the `basic civil rights of man,' fundamental to our very existence and
survival." Id., at 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541
(1942).
[434 U.S. 374, 384]
 

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of
this Court confirm that the right to marry is of fundamental importance for all individuals. Long
ago, in Maynard v. Hill, 125 U.S. 190
(1888), the Court characterized marriage as "the most
important relation in life," id., at 205, and as "the foundation of the family and of society, without
which there would be neither civilization nor progress," id., at 211. In Meyer v. Nebraska, 262 U.S.
390
(1923), the Court recognized that the right "to marry, establish a home and bring up children"
is a central part of the liberty protected by the Due Process Clause, id., at 399, and in Skinner v.
Oklahoma ex rel. Williamson, supra, marriage was described as "fundamental to the very
existence and survival of the race," 316 U.S., at 541
.
More recent decisions have established that the right to marry is part of the fundamental "right
of privacy" implicit in the Fourteenth Amendment's Due Process Clause. In Griswold v.
Connecticut, 381 U.S. 479
(1965), the Court observed:

"We deal with a right of privacy older than the Bill of Rights - older than our political parties,
older than our school system. Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an association that promotes a way
of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions." Id., at 486.

See also id., at 495 (Goldberg, J., concurring); id., at 502-503 (WHITE, J., concurring in judgment).
Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as
among the personal decisions protected by the right of privacy. See generally Whalen v. Roe, 429
U.S. 589, 598
-600, and nn. 23-26 (1977). For [434 U.S. 374, 385]
 
example, last Term in Carey v.
Population Services International, 431 U.S. 678
(1977), we declared:

"While the outer limits of [the right of personal privacy] have not been marked by the Court, it
is clear that among the decisions that an individual may make without unjustified government
interference are personal decisions `relating to marriage, Loving v. Virginia, 388 U.S. 1, 12
(1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541
-542 (1942);
contraception, Eisenstadt v. Baird, 405 U.S., at 453
-454; id., at 460, 463-465 (WHITE, J.,
concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166
(1944);
 and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535
(1925); Meyer v.
Nebraska, [262 U.S. 390, 399 (1923)].'" Id., at 684-685, quoting Roe v. Wade, 410 U.S. 113, 152
-153 (1973).

See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639
-640 (1974) ("This Court has
long recognized that freedom of personal choice in matters of marriage and family life is one of
the liberties protected by the Due Process Clause of the Fourteenth Amendment"); Smith v.
Organization of Foster Families, 431 U.S. 816, 842
-844 (1977); Moore v. East Cleveland, 431 U.S.
494, 499
(1977); Paul v. Davis, 424 U.S. 693, 713
(1976).
10
 
[434 U.S. 374, 386]
 
It is not surprising that the decision to marry has been placed on the same level of importance as
decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of
this case illustrate, it would make little sense to recognize a right of privacy with respect to other
matters of family life and not with respect to the decision to enter the relationship that is the
foundation of the family in our society. The woman whom appellee desired to marry had a
fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring
the child into life to suffer the myriad social, if not economic, disabilities that the status of
illegitimacy brings, see Trimble v. Gordon, 430 U.S. 762, 768
-770, and n. 13 (1977); Weber v.
Aetna Casualty & Surety Co., 406 U.S. 164, 175
-176 (1972). Surely, a decision to marry and raise
the child in a traditional family setting must receive equivalent protection. And, if appellee's right
to procreate means anything at all, it must imply some right to enter the only relationship in
which the State of Wisconsin allows sexual relations legally to take place.
11
 

By reaffirming the fundamental character of the right to marry, we do not mean to suggest that
every state regulation which relates in any way to the incidents of or prerequisites for marriage
must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not
significantly interfere with decisions to enter into the marital relationship may legitimately be
imposed. See Califano v. Jobst, ante, p. 47; [434 U.S. 374, 387]
 
n. 12, infra. The statutory
classification at issue here, however, clearly does interfere directly and substantially with the
right to marry.

Under the challenged statute, no Wisconsin resident in the affected class may marry in
Wisconsin or elsewhere without a court order, and marriages contracted in violation of the
statute are both void and punishable as criminal offenses. Some of those in the affected class,
like appellee, will never be able to obtain the necessary court order, because they either lack the
financial means to meet their support obligations or cannot prove that their children will not
become public charges. These persons are absolutely prevented from getting married. Many
others, able in theory to satisfy the statute's requirements, will be sufficiently burdened by having
to do so that they will in effect be coerced into forgoing their right to marry. And even those who
can be persuaded to meet the statute's requirements suffer a serious intrusion into their freedom
of choice in an area in which we have held such freedom to be fundamental.
12
 
[434 U.S. 374,
388]
 

III

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 interests. See, e. g., Carey v. Population Services International,
431 U.S., at 686
; Memorial Hospital v. Maricopa County, 415 U.S., at 262
-263; San Antonio
Independent School Dist. v. Rodriguez, 411 U.S., at 16
-17; Bullock v. Carter, 405 U.S. 134, 144
(1972). Appellant asserts that two interests are served by the challenged statute: the permission-
to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of
fulfilling his prior support obligations; and the welfare of the out-of-custody children is protected.
We may accept for present purposes that these are legitimate and substantial interests, but,
since the means selected by the State for achieving these interests unnecessarily impinge on the
right to marry, the statute cannot be sustained.

There is evidence that the challenged statute, as originally introduced in the Wisconsin
Legislature, was intended merely to establish a mechanism whereby persons with support
obligations to children from prior marriages could be counseled before they entered into new
marital relationships and incurred further support obligations.
13
Court permission to marry was
to be required, but apparently permission was automatically to be granted after counseling was
completed.
14
The statute actually enacted, however, does not expressly require or provide for
any counseling whatsoever, nor for any automatic granting of permission to marry by the court,
15
and thus it can [434 U.S. 374, 389]
 
hardly be justified as a means for ensuring counseling of
the persons within its coverage. Even assuming that counseling does take place - a fact as to
which there is no evidence in the record - this interest obviously cannot support the withholding
of court permission to marry once counseling is completed.

With regard to safeguarding the welfare of the out-of-custody children, appellant's brief does not
make clear the connection between the State's interest and the statute's requirements. At
argument, appellant's counsel suggested that, since permission to marry cannot be granted
unless the applicant shows that he has satisfied his court-determined support obligations to the
prior children and that those children will not become public charges, the statute provides
incentive for the applicant to make support payments to his children. Tr. of Oral Arg. 17-20. This
"collection device" rationale cannot justify the statute's broad infringement on the right to marry.

First, with respect to individuals who are unable to meet the statutory requirements, the statute
merely prevents the applicant from getting married, without delivering any money at all into the
hands of the applicant's prior children. More importantly, regardless of the applicant's ability or
willingness to meet the statutory requirements, the State already has numerous other means for
exacting compliance with support obligations, means that are at least as effective as the instant
statute's and yet do not impinge upon the right to marry. Under Wisconsin law, whether the
children are from a prior marriage or were born out of wedlock, court-determined support
obligations may be enforced directly via [434 U.S. 374, 390]
 
wage assignments, civil contempt
proceedings, and criminal penalties.
16
And, if the State believes that parents of children out of
their custody should be responsible for ensuring that those children do not become public
charges, this interest can be achieved by adjusting the criteria used for determining the amounts
to be paid under their support orders.

There is also some suggestion that 245.10 protects the ability of marriage applicants to meet
support obligations to prior children by preventing the applicants from incurring new support
obligations. But the challenged provisions of 245.10 are grossly underinclusive with respect to
this purpose, since they do not limit in any way new financial commitments by the applicant
other than those arising out of the contemplated marriage. The statutory classification is
substantially overinclusive as well: Given the possibility that the new spouse will actually better
the applicant's financial situation, by contributing income from a job or otherwise, the statute in
many cases may prevent affected individuals from improving their ability to satisfy their prior
support obligations. And, although it is true that the applicant will incur support obligations to
any children born during the contemplated marriage, preventing the marriage may only result in
the children being born out of wedlock, as in fact occurred in appellee's case. Since the support
obligation is the same whether the child is born in or out of wedlock, the net result of preventing
the marriage is simply more illegitimate children.
The statutory classification created by 245.10 (1), (4), [434 U.S. 374, 391]
 
(5) thus cannot be
justified by the interests advanced in support of it. The judgment of the District Court is,
accordingly,

Affirmed.

[
Footnote *
] Terry W. Rose filed a brief for the Wisconsin Civil Liberties Union Foundation, Inc.,
as amicus curiae urging affirmance.

Footnotes

[
Footnote 1
] Wisconsin Stat. 245.10 provides in pertinent part:

"(1) No Wisconsin resident having minor issue not in his custody and [434 U.S. 374, 376]
 
which he is under obligation to support by any court order or judgment, may marry in this
state or elsewhere, without the order of either the court of this state which granted such
judgment or support order, or the court having divorce jurisdiction in the county of this state
where such minor issue resides or where the marriage license application is made. No
marriage license shall be issued to any such person except upon court order. The court, within
5 days after such permission is sought by verified petition in a special proceeding, shall direct
a court hearing to be held in the matter to allow said person to submit proof of his compliance
with such prior court obligation. No such order shall be granted, or hearing held, unless both
parties to the intended marriage appear, and unless the person, agency, institution, welfare
department or other entity having the legal or actual custody of such minor issue is given
notice of such proceeding by personal service of a copy of the petition at least 5 days prior to
the hearing, except that such appearance or notice may be waived by the court upon good
cause shown, and, if the minor issue were of a prior marriage, unless a 5-day notice thereof is
given to the family court commissioner of the county where such permission is sought, who
shall attend such hearing, and to the family court commissioner of the court which granted
such divorce judgment. If the divorce judgment was granted in a foreign court, service shall be
made on the clerk of that court. Upon the hearing, if said person submits such proof and
makes a showing that such children are not then and are not likely thereafter to become
public charges, the court shall grant such order, a copy of which shall be filed in any prior
proceeding . . . or divorce action of such person in this state affected thereby; otherwise
permission for a license shall be withheld until such proof is submitted and such showing is
made, but any court order withholding such permission is an appealable order. Any hearing
under this section may be waived by the court if the court is satisfied from an examination of
the court records in the case and the family support records in the office of the clerk of court
as well as from disclosure by said person of his financial resources that the latter has
complied with prior court orders or judgments affecting his minor children, and also has
shown that such children are not then and are not likely thereafter to become public charges.
No county clerk in this state shall issue such license to any person required to comply with
this section unless [434 U.S. 374, 377]
 
a certified copy of a court order permitting such
marriage is filed with said county clerk.

.....

"(4) If a Wisconsin resident having such support obligations of a minor, as stated in sub. (1),
wishes to marry in another state, he must, prior to such marriage, obtain permission of the
court under sub. (1), except that in a hearing ordered or held by the court, the other party to
the proposed marriage, if domiciled in another state, need not be present at the hearing. If
 such other party is not present at the hearing, the judge shall within 5 days send a copy of the
order of permission to marry, stating the obligations of support, to such party not present.

"(5) This section shall have extraterritorial effect outside the state; and s. 245.04 (1) and (2)
[providing that out-of-state marriages to circumvent Wisconsin law are void] are applicable
hereto. Any marriage contracted without compliance with this section, where such
compliance is required, shall be void, whether entered into in this state or elsewhere."

The criminal penalties for violation of 245.10 are set forth in Wis. Stat. 245.30 (1) (f) (1973). See
State v. Mueller, 44 Wis. 2d 387, 171 N. W. 2d 414 (1969) (upholding criminal prosecution for
failure to comply with 245.10).

[
Footnote 2
] The record does not indicate whether appellee obtained employment subsequent
to August 1974.

[
Footnote 3
] Under Wisconsin law, "[m]arriage may be validly solemnized and contracted [within
the] state only after a license has been issued therefor," Wis. Stat. 245.16 (1973), and (with an
exception not relevant here) the license must be obtained from "the county clerk of the county in
which one of the parties has resided for at least 30 days immediately prior to making application
therefor," 245.05.

[
Footnote 4
] The order defined the plaintiff class as follows:

"All Wisconsin residents who have minor issue not in their custody and who are under an
obligation to support such minor issue by any court order or judgment and to whom the
county clerk has refused to issue a marriage license without a court order, pursuant to 245.10
(1), Wis. Stats. (1971)."

The order also established a briefing schedule on appellee's motion for certification of a
defendant class. Although appellee thereafter filed a brief in support of the motion, appellant
never submitted a brief in opposition.

[
Footnote 5
] 418 F. Supp. 1061, 1064-1065. The possibility that abstention might [434 U.S. 374,
380]
 
be required under our decision in Huffman v. Pursue, Ltd., was raised by the District Court,
sua sponte, at argument before that court. Appellee subsequently filed a memorandum
contending that abstention was not required; appellant did not submit a response. Appellant now
argues, on this appeal that the District Court failed to consider the "doctrine of federalism" set
forth in Younger and Huffman. According to appellant, proper consideration of this doctrine
would have led the District Court to require appellee to bring suit first in the state courts, in order
to give those courts the initial opportunity to pass on his constitutional attack against 245.10.
We cannot agree.

First, the District Court was correct in finding Huffman and Younger inapplicable, since there was
no pending state-court proceeding in which appellee could have challenged the statute. See
Wooley v. Maynard, 430 U.S. 705, 710
-711 (1977). Second, there are no ambiguities in the
statute for the state courts to resolve, and - absent issues of state law that might affect the
posture of the federal constitutional claims - this Court has uniformly held that individuals
seeking relief under 42 U.S.C. 1983 need not present their federal constitutional claims in state
court before coming to a federal forum. See, e. g., Wisconsin v. Constantineau, 400 U.S. 433, 437
-439 (1971); Zwickler v. Koota, 389 U.S. 241, 245
-252 (1967). See also Huffman v. Pursue, Ltd.,
420 U.S., at 609
-610, n. 21.
Appellant also contends on this appeal, for the first time, that the District Court should have
abstained out of "regard for the independence of state governments in carrying out their
domestic policy." Brief for Appellant 16, citing Burford v. Sun Oil Co., 319 U.S. 315, 317
-318
(1943). Unlike Burford, however, this case does not involve complex issues of state law,
resolution of which would be "disruptive of state efforts to establish a coherent policy with
respect to a matter of substantial public concern." Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 814
-815 (1976). And there is, of course, no doctrine requiring
abstention merely because resolution of a federal question may result in the overturning of a
state policy.

[
Footnote 6
] 418 F. Supp., at 1065-1068. Appellant has not appealed the District Court's finding
that the defendant class satisfied the requirements of Rules 23 (a) and (b) (2), the court's
definition of the class to include all county clerks in Wisconsin, or the requirement that appellant
send a copy of [434 U.S. 374, 381]
 
the judgment to each of the county clerks, and those issues
are therefore not before us. Appellant does claim on this appeal that due process required
prejudgment notice to the members of the defendant class if the judgment was to be binding on
them. As this issue has been framed, however, we cannot perceive appellant's "personal stake in
the outcome," Baker v. Carr, 369 U.S. 186, 204
(1962), and we therefore hold that appellant lacks
standing to raise the claim. Appellant would be bound, regardless of what we concluded as to
the judgment's binding effect on absent members of the defendant class, and appellant has not
asserted that he was injured in any way by the maintenance of this suit as a defendant class
action. Indeed, appellant never filed a brief in the District Court in opposition to the defendant
class, despite being invited to do so, see n. 4 supra, and the notice issue was briefed for the first
time on this appeal, after the Wisconsin Attorney General took over as lead counsel for appellant.
In these circumstances, the absent class members must be content to assert their due process
rights for themselves, through collateral attack or otherwise. See Hansberry v. Lee, 311 U.S. 32
(1940); Advisory Committee Notes on 1966 Amendment to Rule 23, 28 U.S.C. App., p. 7768,
citing Restatement of Judgments 86, Comment (h), 116 (1942). We note, in any event, that in
light of our disposition of this case and the recent revision of Wisconsin's Family Code, see n. 9,
infra, the question of binding effect on the absent members may be wholly academic.

[
Footnote 7
] 418 F. Supp., at 1068-1071. The court found an additional justification for applying
strict scrutiny in the fact that the statute discriminates on the basis of wealth, absolutely denying
individuals the opportunity to marry if they lack sufficient financial resources to make the
showing required by the statute. Id., at 1070, citing San Antonio Independent School Dist. v.
Rodriguez, 411 U.S. 1, 20
(1973).

[
Footnote 8
] 418 F. Supp., at 1071-1073.

[
Footnote 9
] Counsel for appellee informed us at oral argument that appellee was married in
Illinois some time after argument on the merits in the District Court, but prior to judgment. Tr. of
Oral Arg. 23, 30-31. This development in no way moots the issues before us. First, appellee's
individual claim is unaffected, since he is still a Wisconsin resident and the Illinois marriage is
consequently void under the provisions of 245.10 (1), (4), (5). See State v. Mueller, 44 Wis. 2d
387, 171 N. W. 2d 414 (1969) ( 245.10 has extraterritorial effect with respect to Wisconsin
residents). Second, regardless of the current status of appellee's individual claim, the dispute
over the statute's constitutionality remains live with respect to members of the class appellee
represents, and the Illinois marriage took place well after the class was certified. See Franks v.
Bowman Transp. Co., 424 U.S. 747, 752
-757 (1976); Sosna v. Iowa, 419 U.S. 393, 397
-403
(1975).
After argument in this Court, the Acting Governor of Wisconsin signed into law a comprehensive
revision of the State's marriage laws, effective February 1, 1978. 1977 Wis. Laws, ch. 105, Wis.
Legis. Serv. (West 1977). The revision added a new section ( 245.105) which appears to be a
somewhat narrower version of 245.10. Enactment of this new provision also does not moot our
inquiry into the constitutionality of 245.10. By its terms, the new section "shall be enforced only
when the provisions of 245.10 and utilization of the procedures thereunder are stayed or
enjoined by the order of any court." 245.105 (8). As we read this somewhat unusual proviso, and
as it was explained to us at argument by the representative of the Wisconsin Attorney General, Tr.
of Oral Arg. 4-10, the new section is meant only to serve as a stopgap during such time as
enforcement of 245.10 is barred by court order. Were we to vacate the District Court's injunction
on this appeal, 245.10 would go back into full force and effect; accordingly, the dispute over its
validity is quite live. We express no judgment on the constitutionality of the new section.

[
Footnote 10
] Further support for the fundamental importance of marriage is found in our
decisions dealing with rights of access to courts in civil cases. In Boddie v. Connecticut, 401 U.S.
371
(1971), we wrote that "marriage involves interests of basic importance in our society." id., at
376, and held that filing fees for divorce actions violated the due process rights of indigents
unable to pay the fees. Two years later, in United States v. Kras, 409 U.S. 434
(1973), the Court
concluded that filing fees in bankruptcy actions did not deprive indigents of due process or equal
protection. Boddie was distinguished on several grounds, including the following:

"The denial of access to the judicial forum in Boddie touched directly . . . on the marital
relationship and on the associational interests that surround the establishment and
dissolution of that relationship. On many occasions [434 U.S. 374, 386]
 
we have recognized
the fundamental importance of these interests under our Constitution. See, for example,
Loving v. Virginia . . . ." 409 U.S., at 444
.

See also id., at 446 ("Bankruptcy is hardly akin to free speech or marriage . . . [,] rights . . . that the
Court has come to regard as fundamental").

[
Footnote 11
] Wisconsin punishes fornication as a criminal offense:

"Whoever has sexual intercourse with a person not his spouse may be fined not more than
$200 or imprisoned not more than 6 months or both." Wis. Stat. 944.15 (1973).

[
Footnote 12
] The directness and substantiality of the interference with the freedom to marry
distinguish the instant case from Califano v. Jobst, ante, p. 47. In Jobst, we upheld sections of
the Social Security Act providing, inter alia, for termination of a dependent child's benefits upon
marriage to an individual not entitled to benefits under the Act. As the opinion for the Court
expressly noted, the rule terminating benefits upon marriage was not "an attempt to interfere
with the individual's freedom to make a decision as important as marriage." Ante, at 54. The
Social Security provisions placed no direct legal obstacle in the path of persons desiring to get
married, and - notwithstanding our Brother REHNQUIST'S imaginative recasting of the case, see
dissenting opinion, post, at 408 - there was no evidence that the laws significantly discouraged,
let alone made "practically impossible," any marriages. Indeed, the provisions had not deterred
the individual who challenged the statute from getting married, even though he and his wife were
both disabled. See Califano v. Jobst, ante, at 48. See also ante, at 57 n. 17 (because of
availability of other federal benefits, total payments to the Jobsts after marriage were only $20
per month less than they would have been had Mr. Jobst's child benefits not been terminated).

[
Footnote 13
] See Wisconsin Legislative Council Notes, 1959, reprinted following Wis. Stat. Ann.
245.10 (Supp. 1977-1978); 5 Wisconsin Legislative Council, General Report 68 (1959).
[
Footnote 14
] See ibid.

[
Footnote 15
] Although the statute as originally enacted in 1959 did not provide for automatic
granting of permission, it did allow the court to grant [434 U.S. 374, 389]
 
permission if it found
"good cause" for doing so, even in the absence of a showing that support obligations were being
met. 1959 Wis. Laws, ch. 595, 17. In 1961, the good-cause provision was deleted, and the
requirement of a showing that the out-of-custody children are not and will not become public
charges was added. 1961 Wis. Laws, ch. 505, 11.

[
Footnote 16
] Wisconsin statutory provisions for civil enforcement of support obligations to
children from a prior marriage include 247.232 (wage assignment), 247.265 (same), and 295.03
(civil contempt). Support obligations arising out of paternity actions may be civilly enforced
under 52.21 (2) (wage assignment) and 52.40 (civil contempt). See also 52.39. In addition, failure
to meet support obligations may result in conviction of the felony offense of abandonment of a
minor child, 52.05, or the misdemeanor of failure to support a minor child, 52.055.

MR. CHIEF JUSTICE BURGER, concurring.

I join MR. JUSTICE MARSHALL's opinion for the Court. With all deference, MR. JUSTICE
STEVENS' opinion does not persuade me that the analysis in the Court's opinion is in any
significant way inconsistent with the Court's unanimous holding in Califano v. Jobst, ante, p. 47.
Unlike the intentional and substantial interference with the right to marry effected by the
Wisconsin statute at issue here, the Social Security Act provisions challenged in Jobst did not
constitute an "attempt to interfere with the individual's freedom to make a decision as important
as marriage," Califano v. Jobst, ante, at 54, and, at most, had an indirect impact on that decision.
It is with this understanding that I join the Court's opinion today.

MR. JUSTICE STEWART, concurring in the judgment.

I cannot join the opinion of the Court. To hold, as the Court does, that the Wisconsin statute
violates the Equal Protection Clause seems to me to misconceive the meaning of that
constitutional guarantee. The Equal Protection Clause deals not with substantive rights or
freedoms but with invidiously discriminatory classifications. San Antonio Independent School
Dist. v. Rodriguez, 411 U.S. 1, 59
(concurring opinion). The paradigm of its violation is, of course,
classification by race. McLaughlin v. Florida, 379 U.S. 184
; Loving v. Virginia, 388 U.S. 1, 13
(concurring opinion).

Like almost any law, the Wisconsin statute now before us affects some people and does not
affect others. But to say that it thereby creates "classifications" in the equal protection sense
strikes me as little short of fantasy. The problem in this case is not one of discriminatory
classifications, but of unwarranted encroachment upon a constitutionally protected [434 U.S.
374, 392]
 
freedom. I think that the Wisconsin statute is unconstitutional because it exceeds the
bounds of permissible state regulation of marriage, and invades the sphere of liberty protected
by the Due Process Clause of the Fourteenth Amendment.

I do not agree with the Court that there is a "right to marry" in the constitutional sense. That right,
or more accurately that privilege,
1
is under our federal system peculiarly one to be defined and
limited by state law. Sosna v. Iowa, 419 U.S. 393, 404
. A State may not only "significantly
interfere with decisions to enter into the marital relationship,"
2
but may in many circumstances
absolutely prohibit it. Surely, for example, a State may legitimately say that no one can marry his
or her sibling, that no one can marry who is not at least 14 years old, that no one can marry
without first passing an examination for venereal disease, or that no one can marry who has a
living husband or wife. But, just as surely, in regulating the intimate human relationship of
marriage, there is a limit beyond which a State may not constitutionally go.

The Constitution does not specifically mention freedom to marry, but it is settled that the "liberty"
protected by the Due Process Clause of the Fourteenth Amendment embraces more than those
freedoms expressly enumerated in the Bill of Rights. See Schware v. Board of Bar Examiners, 353
U.S. 232, 238
-239; Pierce v. Society of Sisters, 268 U.S. 510, 534
-535; Meyer v. Nebraska, 262
U.S. 390, 399
-400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629
-630; United States v. Guest, 383
U.S. 745, 757
-758; Aptheker v. Secretary of State, 378 U.S. 500, 505
; Kent v. Dulles, 357 U.S. 116,
127
; Truax v. Raich, 239 U.S. 33, 41
. And the decisions of this Court [434 U.S. 374, 393]
 
have
made clear that freedom of personal choice in matters of marriage and family life is one of the
liberties so protected. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639
; Roe v. Wade,
410 U.S. 113, 152
-153; Loving v. Virginia, supra, at 12; Griswold v. Connecticut, 381 U.S. 479, 485
-486; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v.
Massachusetts, 321 U.S. 158
; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541
.

It is evident that the Wisconsin law now before us directly abridges that freedom. The question is
whether the state interests that support the abridgment can overcome the substantive
protections of the Constitution.

The Wisconsin law makes permission to marry turn on the payment of money in support of one's
children by a previous marriage or liaison. Those who cannot show both that they have kept up
with their support obligations and that their children are not and will not become wards of the
State are altogether prohibited from marrying.

If Wisconsin had said that no one could marry who had not paid all of the fines assessed against
him for traffic violations, I suppose the constitutional invalidity of the law would be apparent. For
while the state interest would certainly be legitimate, that interest would be both
disproportionate and unrelated to the restriction of liberty imposed by the State. But the invalidity
of the law before us is hardly so clear, because its restriction of liberty seems largely to be
imposed only on those who have abused the same liberty in the past.

Looked at in one way, the law may be seen as simply a collection device additional to those used
by Wisconsin and other States for enforcing parental support obligations. But since it operates
by denying permission to marry, it also clearly reflects a legislative judgment that a person
should not be permitted to incur new family financial obligations until he has fulfilled those he
already has. Insofar as this judgment is paternalistic rather than punitive, it manifests a concern
[434 U.S. 374, 394]
 
for the economic well-being of a prospective marital household. These
interests are legitimate concerns of the State. But it does not follow that they justify the absolute
deprivation of the benefits of a legal marriage.

On several occasions this Court has held that a person's inability to pay money demanded by the
State does not justify the total deprivation of a constitutionally protected liberty. In Boddie v.
Connecticut, 401 U.S. 371
, the Court held that the State's legitimate purposes in collecting filing
fees for divorce actions were insufficient under the Due Process Clause to deprive the indigent of
access to the courts where that access was necessary to dissolve the marital relationship. In
Tate v. Short, 401 U.S. 395
, and Williams v. Illinois, 399 U.S. 235
, the Court held that an indigent
offender could not have his term of imprisonment increased, and his liberty curtailed, simply by
reason of his inability to pay a fine.
The principle of those cases applies here as well. The Wisconsin law makes no allowance for the
truly indigent. The State flatly denies a marriage license to anyone who cannot afford to fulfill his
support obligations and keep his children from becoming wards of the State. We may assume
that the State has legitimate interests in collecting delinquent support payments and in reducing
its welfare load. We may also assume that, as applied to those who can afford to meet the
statute's financial requirements but choose not to do so, the law advances the State's objectives
in ways superior to other means available to the State. The fact remains that some people simply
cannot afford to meet the statute's financial requirements. To deny these people permission to
marry penalizes them for failing to do that which they cannot do. Insofar as it applies to
indigents, the state law is an irrational means of achieving these objectives of the State.

As directed against either the indigent or the delinquent parent, the law is substantially more
rational if viewed as a means of assuring the financial viability of future marriages. [434 U.S. 374,
395]
 
In this context, it reflects a plausible judgment that those who have not fulfilled their
financial obligations and have not kept their children off the welfare rolls in the past are likely to
encounter similar difficulties in the future. But the State's legitimate concern with the financial
soundness of prospective marriages must stop short of telling people they may not marry
because they are too poor or because they might persist in their financial irresponsibility. The
invasion of constitutionally protected liberty and the chance of erroneous prediction are simply
too great. A legislative judgment so alien to our traditions and so offensive to our shared notions
of fairness offends the Due Process Clause of the Fourteenth Amendment.

II

In an opinion of the Court half a century ago, Mr. Justice Holmes described an equal protection
claim as "the usual last resort of constitutional arguments." Buck v. Bell, 274 U.S. 200, 208
.
Today equal protection doctrine has become the Court's chief instrument for invalidating state
laws. Yet, in a case like this one, the doctrine is no more than substantive due process by another
name.

Although the Court purports to examine the bases for legislative classifications and to compare
the treatment of legislatively defined groups, it actually erects substantive limitations on what
States may do. Thus, the effect of the Court's decision in this case is not to require Wisconsin to
draw its legislative classifications with greater precision or to afford similar treatment to similarly
situated persons. Rather, the message of the Court's opinion is that Wisconsin may not use its
control over marriage to achieve the objectives of the state statute. Such restrictions on basic
governmental power are at the heart of substantive due process.

The Court is understandably reluctant to rely on substantive due process. See Roe v. Wade, 410
U.S. at 167-168 (concurring opinion). But to embrace the essence of that doctrine under the
guise of equal protection serves no purpose [434 U.S. 374, 396]
 
but obfuscation. "[C]ouched in
slogans and ringing phrases," the Court's equal protection doctrine shifts the focus of the judicial
inquiry away from its proper concerns, which include "the nature of the individual interest
affected, the extent to which it is affected, the rationality of the connection between legislative
means and purpose, the existence of alternative means for effectuating the purpose, and the
degree of confidence we may have that the statute reflects the legislative concern for the
purpose that would legitimately support the means chosen." Williams v. Illinois, supra, at 260
(Harlan, J., concurring in result).

To conceal this appropriate inquiry invites mechanical or thoughtless application of misfocused

doctrine. To bring it into the open forces a healthy and responsible recognition of the nature and
purpose of the extreme power we wield when, in invalidating a state law in the name of the
Constitution, we invalidate pro tanto the process of representative democracy in one of the
sovereign States of the Union.

[
Footnote 1
] See Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning, 23 Yale L. J. 16 (1913).

[
Footnote 2
] See ante, at 386.

MR. JUSTICE POWELL, concurring in the judgment.

I concur in the judgment of the Court that Wisconsin's restrictions on the exclusive means of
creating the marital bond, erected by Wis. Stat. 245.10 (1), (4), and (5) (1973), cannot meet
applicable constitutional standards. I write separately because the majority's rationale sweeps
too broadly in an area which traditionally has been subject to pervasive state regulation. The
Court apparently would subject all state regulation which "directly and substantially" interferes
with the decision to marry in a traditional family setting to "critical examination" or "compelling
state interest" analysis. Presumably, "reasonable regulations that do not significantly interfere
with decisions to enter into the marital relationship may legitimately be imposed." Ante, at 386.
The Court does not present, however, any principled means for distinguishing between the two
types of regulations. Since state regulation in [434 U.S. 374, 397]
 
this area typically takes the
form of a prerequisite or barrier to marriage or divorce, the degree of "direct" interference with
the decision to marry or to divorce is unlikely to provide either guidance for state legislatures or a
basis for judicial oversight.

On several occasions, the Court has acknowledged the importance of the marriage relationship
to the maintenance of values essential to organized society. "This Court has long recognized that
freedom of personal choice in matters of marriage and family life is one of the liberties protected
by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v.
LaFleur, 414 U.S. 632, 639
-640 (1974). Our decisions indicate that the guarantee of personal
privacy or autonomy secured against unjustifiable governmental interference by the Due Process
Clause "has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12
(1967) . . . ." Roe v. Wade, 410 U.S. 113, 152
(1973). "While the outer limits of this aspect of
privacy have not been marked by the Court, it is clear that among the decisions that an individual
may make without unjustified government interference are personal decisions `relating to
marriage. . . .'" Carey v. Population Services International, 431 U.S. 678, 684
-685 (1977).

Thus, it is fair to say that there is a right of marital and familial privacy which places some
substantive limits on the regulatory power of government. But the Court has yet to hold that all
regulation touching upon marriage implicates a "fundamental right" triggering the most exacting
judicial scrutiny.
1
 
[434 U.S. 374, 398]
 

The principal authority cited by the majority is Loving v. Virginia, 388 U.S. 1
(1967). Although
Loving speaks of the "freedom to marry" as "one of the vital personal rights essential to the
orderly pursuit of happiness by free men," the Court focused on the miscegenation statute before
it. Mr. Chief Justice Warren stated:

"Marriage is one of the `basic civil rights of man,' fundamental to our very existence and
survival. Skinner v. Oklahoma, 316 U.S. 535, 541
(1942). See also Maynard v. Hill, 125 U.S. 190
(1888). To deny this fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so directly subversive of the
principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the
 State's citizens of liberty without due process of law. The Fourteenth Amendment requires
that the freedom of choice to marry not be restricted by invidious racial discriminations. Under
our Constitution, the freedom to marry, or not marry, a person of another race resides with the
individual and cannot be infringed by the State." Id., at 12.

Thus, Loving involved a denial of a "fundamental freedom" on a wholly unsupportable basis - the
use of classifications "directly subversive of the principle of equality at the heart of the
Fourteenth Amendment . . . ." It does not speak to the level of judicial scrutiny of, or
governmental justification for, "supportable" restrictions on the "fundamental freedom" of
individuals to marry or divorce.
In my view, analysis must start from the recognition of domestic relations as "an area that has
long been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419 U.S. 393,
404
(1975). The marriage relation traditionally has been subject to regulation, initially by the
ecclesiastical authorities, and later by the secular state. As early as [434 U.S. 374, 399]
 
Pennoyer v. Neff, 95 U.S. 714, 734
-735 (1878), this Court noted that a State "has absolute right
to prescribe the conditions upon which the marriage relation between its own citizens shall be
created, and the causes for which it may be dissolved." The State, representing the collective
expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic
relations reflect the widely held values of its people.

"Marriage, as creating the most important relation in life, as having more to do with the morals
and civilization of a people than any other institution, has always been subject to the control
of the legislature. That body prescribes the age at which parties may contract to marry, the
procedure or form essential to constitute marriage, the duties and obligations it creates, its
effects upon the property rights of both, present and prospective, and the acts which may
constitute grounds for its dissolution." Maynard v. Hill, 125 U.S. 190, 205
(1888).

State regulation has included bans on incest, bigamy, and homosexuality, as well as various
preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of
the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A
"compelling state purpose" inquiry would cast doubt on the network of restrictions that the
States have fashioned to govern marriage and divorce.

II

State power over domestic relations is not without constitutional limits. The Due Process Clause
requires a showing of justification "when the government intrudes on choices concerning family
living arrangements" in a manner which is contrary to deeply rooted traditions. Moore v. East
Cleveland, 431 U.S. 494, 499
, 503-504 (1977) (plurality opinion). Cf. Smith v. Organization of
Foster Families, 431 U.S. 816
, [434 U.S. 374, 400]
 
842-847 (1977). Due process constraints also
limit the extent to which the State may monopolize the process of ordering certain human
relationships while excluding the truly indigent from that process. Boddie v. Connecticut, 401 U.S.
371
(1971). Furthermore, under the Equal Protection Clause the means chosen by the State in
this case must bear "`a fair and substantial relation'" to the object of the legislation. Reed v. Reed,
404 U.S. 71, 76
(1971), quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415
(1920); Craig v.
Boren, 429 U.S. 190, 210
-211 (1976) (POWELL, J., concurring).

The Wisconsin measure in this case does not pass muster under either due process or equal
protection standards. Appellant identifies three objectives which are supposedly furthered by the
statute in question: (i) a counseling function; (ii) an incentive to satisfy outstanding support
obligations; and (iii) a deterrent against incurring further obligations. The opinion of the Court
amply demonstrates that the asserted counseling objective bears no relation to this statute.
Ante, at 388-389. No further discussion is required here.

The so-called "collection device" rationale presents a somewhat more difficult question. I do not
agree with the suggestion in the Court's opinion that a State may never condition the right to
marry on satisfaction of existing support obligations simply because the State has alternative
methods of compelling such payments. To the extent this restriction applies to persons who are
able to make the required support payments but simply wish to shirk their moral and legal
obligation, the Constitution interposes no bar to this additional collection mechanism. The vice
inheres, not in the collection concept, but in the failure to make provision for those without the
means to comply with child-support obligations. I draw support from Mr. Justice Harlan's opinion
in Boddie v. Connecticut. In that case, the Court struck down filing fees for divorce actions as
applied to those wholly unable to pay, holding "that a State may not, consistent with the
obligations [434 U.S. 374, 401]
 
imposed on it by the Due Process Clause of the Fourteenth
Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens
access to the means it has prescribed for doing so." 401 U.S., at 383
. The monopolization
present in this case is total, for Wisconsin will not recognize foreign marriages that fail to
conform to the requirements of 245.10.
2
 

The third justification, only obliquely advanced by appellant, is that the statute preserves the
ability of marriage [434 U.S. 374, 402]
 
applicants to support their prior issue by preventing them
from incurring new obligations. The challenged provisions of 245.10 are so grossly
underinclusive with respect to this objective, given the many ways that additional financial
obligations may be incurred by the applicant quite apart from a contemplated marriage, that the
classification "does not bear a fair and substantial relation to the object of the legislation." Craig
v. Boren, supra, at 211 (POWELL, J., concurring). See Eisenstadt v. Baird, 405 U.S. 438, 447
-450
(1972); cf. Moore v. East Cleveland, 431 U.S., at 499
-500 (plurality opinion).

The marriage applicant is required by the Wisconsin statute not only to submit proof of
compliance with his support obligation, but also to demonstrate - in some unspecified way - that
his children "are not then and are not likely thereafter to become public charges."
3
This statute
does more than simply "fail to alleviate the consequences of differences in economic
circumstances that exist wholly apart from any state action." Griffin v. Illinois, 351 U.S. 12, 34
(1956) (Harlan, J., dissenting). It tells the truly indigent, whether they have met their support
obligations or not, that they may not marry so long as their children are public charges or there is
a danger that their children might go on public assistance in the future.
4
Apparently, no other
jurisdiction has embraced this approach as a method of reducing the number of children on
public assistance. Because the State has not established a justification for [434 U.S. 374, 403]
 
this unprecedented foreclosure of marriage to many of its citizens solely because of their
indigency, I concur in the judgment of the Court.

[
Footnote 1
] Although the cases cited in the text indicate that there is a sphere of privacy or
autonomy surrounding an existing marital relationship into which the State may not lightly
intrude, they do not necessarily suggest that the same barrier of justification blocks regulation of
the conditions of entry into or the dissolution of the marital bond. See generally Henkin, Privacy
and Autonomy, 74 Colum. L. Rev. 1410, 1429-1432 (1974).

[
Footnote 2
] Boddie was "as applied" challenge; it does not require invalidation of 245.10 as
unconstitutional on its face. In ordinary circumstances, the Court should merely require that
Wisconsin permit those members of the appellee class to marry if they can demonstrate "the
bona fides of [their] indigency," 401 U.S., at 382
. The statute in question, however, does not
contain a severability clause, and the Wisconsin Legislature has made specific provision for the
contingency that "utilization of the procedures [under 245.10 may be] stayed or enjoined by the
order of any court." In the event of such a stay or injunction after February 1, 1978, 1977 Wis.
Laws, ch. 105, 3 (Wis. Stat. 245.105 (3)), Wis. Legis. Serv. (West 1977), provides that "permission
to remarry may likewise be granted to any petitioner who submits clear and convincing proof to
the court that for reasonable cause he or she was not able to comply with a previous court
obligation for child support."

The dissenting opinion of MR. JUSTICE REHNQUIST suggests that appellee may no longer be
"incapable of discharging the arrearage as required by the support order and contributing
sufficient funds in the future to remove his child from the welfare rolls." Post, at 410. There is no
basis in the record for such speculation. The parties entered into a stipulation that as of August
1974, a month before appellee was denied a marriage license, appellee "was unemployed and
indigent and unable to pay any sum for support of his issue." App. 21. In its opinion dated August
31, 1976, the District Court noted that "[i]n Redhail's case, because of his poverty he has been
unable to satisfy the support obligation ordered in the paternity action, and, hence, a state court
could not grant him permission to marry." 418 F. Supp. 1061, 1070 (ED Wis.). Appellant has not
challenged the factual predicate of the trial court's determination, or even intimated that
appellee's financial situation has improved materially. Such matters, of course, may be inquired
into by the local court pursuant to the new procedures that will go into effect after February 1,
1978.

[
Footnote 3
] The plaintiff in the companion case, Leipzig v. Pallamolla, 418 F. Supp. 1073 (ED
Wis. 1976), had complied with his support obligations but was denied permission to marry
because his four minor children received welfare benefits.

[
Footnote 4
] Quite apart from any impact on the truly indigent, the statute appears to "confer
upon [the judge] a license for arbitrary procedure," Kent v. United States, 383 U.S. 541, 553
(1966), in the determination of whether an applicant's children are "likely thereafter to become
public charges." A serious question of procedural due process is raised by this feature of
standardless discretion, particularly in light of the hazards of prediction in this area.

MR. JUSTICE STEVENS, concurring in the judgment.

Because of the tension between some of the language in MR. JUSTICE MARSHALL'S opinion for
the Court and the Court's unanimous holding in Califano v. Jobst, ante, p. 47, a further exposition
of the reasons why the Wisconsin statute offends the Equal Protection Clause of the Fourteenth
Amendment is necessary.

When a State allocates benefits or burdens, it may have valid reasons for treating married and
unmarried persons differently. Classification based on marital status has been an accepted
characteristic of tax legislation, Selective Service rules, and Social Security regulations. As cases
like Jobst demonstrate, such laws may "significantly interfere with decisions to enter into the
marital relationship." Ante, at 386. That kind of interference, however, is not a sufficient reason
for invalidating every law reflecting a legislative judgment that there are relevant differences
between married persons as a class and unmarried persons as a class.
1
 

A classification based on marital status is fundamentally [434 U.S. 374, 404]

 
different from a
classification which determines who may lawfully enter into the marriage relationship.
2
The
individual's interest in making the marriage decision independently is sufficiently important to
merit special constitutional protection. See Whalen v. Roe, 429 U.S. 589, 599
-600. It is not,
however, an interest which is constitutionally immune from evenhanded regulation. Thus, laws
prohibiting marriage to a child, a close relative, or a person afflicted with venereal disease, are
unchallenged even though they "interfere directly and substantially with the right to marry." Ante,
at 387. This Wisconsin statute has a different character.

Under this statute, a person's economic status may determine his eligibility to enter into a lawful
marriage. A noncustodial parent whose children are "public charges" may not marry even if he
has met his court-ordered obligations.
3
Thus, within the class of parents who have fulfilled their
court-ordered obligations, the rich may marry and the poor may not. This type of statutory
discrimination is, I believe, totally unprecedented,
4
as well as inconsistent with our tradition of
administering justice equally to the rich and to the poor.
5
 

The statute appears to reflect a legislative judgment that persons who have demonstrated an
inability to support their offspring should not be permitted to marry and thereafter to [434 U.S.
374, 405]
 
bring additional children into the world.
6
Even putting to one side the growing number
of childless marriages and the burgeoning number of children born out of wedlock, that sort of
reasoning cannot justify this deliberate discrimination against the poor.

The statute prevents impoverished parents from marrying even though their intended spouses
are economically independent. Presumably, the Wisconsin Legislature assumed (a) that only
fathers would be affected by the legislation, and (b) that they would never marry employed
women. The first assumption ignores the fact that fathers are sometimes awarded custody,
7
and the second ignores the composition of today's work force.
8
To the extent that the statute
denies a hardpressed parent any opportunity to prove that an intended marriage will ease rather
than aggravate his financial straits, it not only rests on unreliable premises, but also defeats its
own objectives.

These questionable assumptions also explain why this statutory blunderbuss is wide of the
target in another respect. The prohibition on marriage applies to the noncustodial parent but
allows the parent who has custody to marry without the State's leave. Yet the danger that new
children will further strain [434 U.S. 374, 406]
 
an inadequate budget is equally great for
custodial and noncustodial parents, unless one assumes (a) that only mothers will ever have
custody and (b) that they will never marry unemployed men.

Characteristically, this law fails to regulate the marriages of those parents who are least likely to
be able to afford another family, for it applies only to parents under a court order to support their
children. Wis. Stat. 245.10 (1) (1973). The very poorest parents are unlikely to be the objects of
support orders.
9
If the State meant to prevent the marriage of those who have demonstrated
their inability to provide for children, it overlooked the most obvious targets of legislative
concern.

In sum, the public-charge provision is either futile or perverse insofar as it applies to childless
couples, couples who will have illegitimate children if they are forbidden to marry, couples whose
economic status will be improved by marriage, and couples who are so poor that the marriage
will have no impact on the welfare status of their children in any event. Even assuming that the
right to marry may sometimes be denied on economic grounds, this clumsy and deliberate
legislative discrimination between the rich and the poor is irrational in so many ways that it
cannot withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment.
10
 

[
Footnote 1
] In Jobst, we pointed out that "it was rational for Congress to assume that marital
status is a relevant test of probable dependency . . . ." We had explained:

"Both tradition and common experience support the conclusion that marriage is an event
which normally marks an important change in economic status. Traditionally, the event not
 only creates a new family with attendant new responsibilities, but also modifies the pre-
existing relationships between the bride and groom and their respective families. Frequently,
of course, financial independence and marriage do not go hand in hand. Nevertheless, there
can be no question about the validity of the assumption that a married person is less likely to
be dependent on his parents for support than one who is unmarried." Ante, at 53.

[
Footnote 2
] Jobst is in the former category; Loving v. Virginia, 388 U.S. 1
, is in the latter.

[
Footnote 3
] As MR. JUSTICE POWELL demonstrates, a constitutional defect in this provision
invalidates the entire statute. Ante, at 401 n. 2.

[
Footnote 4
] The economic aspects of a prospective marriage are unquestionably relevant to
almost every individual's marriage decision. But I know of no other state statute that denies the
individual marriage partners the right to assess the financial consequences of their decision
independently. I seriously question whether any limitation on the right to marry may be
predicated on economic status, but that question need not be answered in this case.

[
Footnote 5
] This tradition explains why each member of the federal judiciary has sworn or
affirmed that he will "do equal right to the poor and to the rich . . . ." See 28 U.S.C. 453.

[
Footnote 6
] The "public charge" provision, which falls on parents who have faithfully met their
obligations, but who are unable to pay enough to remove their children from the welfare rolls,
obviously cannot be justified by a state interest in assuring the payment of child support. And, of
course, it would be absurd for the State to contend that an interest in providing paternalistic
counseling supports a total ban on marriage.

[
Footnote 7
] The Wisconsin Legislature has itself provided:

"In determining the parent with whom a child shall remain, the court shall consider all facts in
the best interest of the child and shall not prefer one parent over the other solely on the basis
of the sex of the parent." Wis. Stat. 247.24 (3) (1977).

[
Footnote 8
] Plainly, both of these assumptions are the product of a habitual way of thinking
about male and female roles "rather than analysis or actual reflection." See Califano v. Goldfarb,
430 U.S. 199, 222
(STEVENS, J., concurring in judgment).

[
Footnote 9
] Although Wisconsin precedents are scarce, the State's courts seem to follow the
general rule that child-support orders are heavily influenced by the parent's ability to pay. See H.
Clark, Law of Domestic Relations 496 (1968); see also Miller v. Miller, 67 Wis. 2d 435, 227 N. W.
2d 626 (1975). A parent who is so disabled that he will never earn enough to pay child support is
unlikely to be sued, and a court order is unlikely to be granted. Cf. Ponath v. Hedrick, 22 Wis. 2d
382, 126 N. W. 2d 28 (1964) (social security benefits not to be included in determining relative's
ability to make support payments).

[
Footnote 10
] Neither the fact that the appellee's interest is constitutionally protected, nor the
fact that the classification is based on economic status is sufficient to justify a "level of scrutiny"
so strict that a holding of unconstitutionality is virtually foreordained. On the other hand, the
presence of these factors precludes a holding that a rational expectation of occasional and
random [434 U.S. 374, 407]
 
benefit is sufficient to demonstrate compliance with the
constitutional command to govern impartially. See Craig v. Boren, 429 U.S. 190, 211
(STEVENS,
J., concurring). [434 U.S. 374, 407]
 

MR. JUSTICE REHNQUIST, dissenting.

I substantially agree with my Brother POWELL's reasons for rejecting the Court's conclusion that
marriage is the sort of "fundamental right" which must invariably trigger the strictest judicial
scrutiny. I disagree with his imposition of an "intermediate" standard of review, which leads him
to conclude that the statute, though generally valid as an "additional collection mechanism"
offends the Constitution by its "failure to make provision for those without the means to comply
with child-support obligations." Ante, at 400. For similar reasons, I disagree with my Brother
STEWART'S conclusion that the statute is invalid for its failure to exempt those persons who
"simply cannot afford to meet the statute's financial requirements." Ante, at 394. I would view this
legislative judgment in the light of the traditional presumption of validity. I think that under the
Equal Protection Clause the statute need pass only the "rational basis test," Dandridge v.
Williams, 397 U.S. 471, 485
(1970), and that under the Due Process Clause it need only be shown
that it bears a rational relation to a constitutionally permissible objective, Williamson v. Lee
Optical Co., 348 U.S. 483, 491
(1955); Ferguson v. Skrupa, 372 U.S. 726, 733
(1963) (Harlan, J.,
concurring). The statute so viewed is a permissible exercise of the State's power to regulate
family life and to assure the support of minor children, despite its possible imprecision in the
extreme cases envisioned in the concurring opinions.

Earlier this Term the traditional standard of review was applied in Califano v. Jobst, ante, p. 47,
despite the claim that the statute there in question burdened the exercise of the right to marry.
The extreme situation considered there involved a permanently disabled appellee whose benefits
under the Social Security Act had been terminated because of his [434 U.S. 374, 408]
 
marriage
to an equally disabled woman who was not, however, a beneficiary under the Act. This Court
recognized that Congress, in granting the original benefit, could reasonably assume that a
disabled adult child remained dependent upon his parents for support. The Court concluded that,
upon a beneficiary's marriage, Congress could terminate his benefits, because "there can be no
question about the validity of the assumption that a married person is less likely to be dependent
on his parents for support than one who is unmarried." Ante, at 53. Although that assumption
had been proved false as applied in that individual case, the statute was nevertheless rational.
"The broad legislative classification must be judged by reference to characteristics typical of the
affected classes rather than by focusing on selected, atypical examples." Ante, at 55.

The analysis applied in Jobst is equally applicable here. Here, too, the Wisconsin Legislature has
"adopted this rule in the course of constructing a complex social welfare system that necessarily
deals with the intimacies of family life." Ante, at 54 n. 11. Because of the limited amount of funds
available for the support of needy children, the State has an exceptionally strong interest in
securing as much support as their parents are able to pay. Nor does the extent of the burden
imposed by this statute so differentiate it from that considered in Jobst as to warrant a different
result. In the case of some applicants, this statute makes the proposed marriage legally
impossible for financial reasons; in a similar number of extreme cases, the Social Security Act
makes the proposed marriage practically impossible for the same reasons. I cannot conclude
that such a difference justifies the application of a heightened standard of review to the statute
in question here. In short, I conclude that the statute, despite its imperfections, is sufficiently
rational to satisfy the demands of the Fourteenth Amendment.

Two of the opinions concurring in the judgment seem to agree that the statute is sufficiently
rational except as applied to the truly indigent. Ante, at 394 (STEWART, J.); ante, at [434 U.S. 374,
409]
 
400 (POWELL, J.). Under this view, the statute could, I suppose, be constitutionally applied
to forbid the marriages of those applicants who had willfully failed to contribute so much as was
in their means to the support of their dependent children. Even were I to agree that a statute
based upon generally valid assumptions could be struck down on the basis of "selected, atypical
examples," Jobst, ante, at 55, I could not concur in the judgment of the Court, because there has
been no showing that this appellee is so truly indigent that the State could not refuse to sanction
his marriage.

Under well-established rules of standing, a litigant may assert the invalidity of a statute only as
applied in his case. "[A] person to whom a statute may constitutionally be applied will not be
heard to challenge that statute on the ground that it may conceivably be applied
unconstitutionally to others, in situations not before the Court." Broadrick v. Oklahoma, 413 U.S.
601, 610
(1973). See also Barrows v. Jackson, 346 U.S. 249, 256
-257 (1953). We have made a
limited exception to this rule in cases arising under the First Amendment, allowing the
invalidation of facially overbroad statutes to guard against a chilling effect on the exercise of
constitutionally protected free speech. See, e. g., Coates v. Cincinnati, 402 U.S. 611
(1971). But
no claim based on the First Amendment is or could be made by this appellee.

Appellee's standing to contest the validity of the statute as applied to him must be considered on
the basis of the facts as stipulated before the District Court. The State conceded, without
requiring proof, that "[f]rom May of 1972 until August of 1974, [appellee] was unemployed and
indigent and unable to pay any sum for support of his issue." App. 21. There is no stipulation in
this record that appellee was indigent at the time he was denied a marriage license on
September 30, 1974, or that he was indigent at the time he filed his complaint on December 24,
1974, or that he was indigent at the time the District Court rendered its judgment on August 31,
1976. All we know of his more recent financial [434 U.S. 374, 410]
 
condition is his counsel's
concession at oral argument that appellee had married in Illinois, Tr. of Oral Arg. 23, clearly
demonstrating that he knows how to obtain funds for a purpose which he deems sufficiently
important. On these inartfully stipulated facts, it cannot be said, even now, that this appellee is
incapable of discharging the arrearage as required by the support order and contributing
sufficient funds in the future to remove his child from the welfare rolls. Therefore, even under the
view taken by the opinions concurring in the judgment, appellee has not shown that this statute
is unconstitutional as applied to him.

Because of my conclusion that the statute is valid despite its possible application to the truly
indigent, I need not determine whether the named appellee's failure to establish his indigency
should preclude this Court from granting injunctive relief to the indigent members of the class
which appellee purports to represent.
*
Our decisions have demonstrated that, where the claim
of the named representative has become moot, this Court is not bound to dismiss the action but
may consider a variety of factors in determining whether to proceed. See generally Kremens v.
Bartley, 431 U.S. 119, 129
-135 (1977). It has never been explicitly determined whether [434 U.S.
374, 411]
 
similar considerations apply where the named representative never had a valid claim
of his own. But see Allee v. Medrano, 416 U.S. 802, 828
-829, and n. 4 (1974) (BURGER, C. J.,
concurring and dissenting). In light of my view on the merits, I am content to save this question
for another day.

I would reverse the judgment of the District Court.

[
Footnote *
] Ordinarily, "a class representative must be part of the class and `possess the same
interest and suffer the same injury' as the class members." East Texas Motor Freight v.
Rodriguez, 431 U.S. 395, 403
(1977), quoting Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208, 216
(1974). At least where the issue is properly raised, an appellate court may
consider the representative's failure to establish his own claim in determining whether a class
action may be maintained. See, e. g., Donaldson v. Pillsbury Co., 554 F.2d 825, 831-832, n. 5 (CA8
1977); cf. East Texas, supra, at 406 n. 12. In some instances, the court may eliminate from the
class those persons whom the named plaintiff may not adequately represent. La Mar v. H & B
 Novelty & Loan Co., 489 F.2d 461 (CA9 1973). In this case, such an approach could require the
dismissal of the class action altogether, since appellee can represent no one with a valid claim.
The State, however, has inexplicably failed to challenge the certification of the plaintiff class,
either here or in the trial court. [434 U.S. 374, 412]
 

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10/16/21, 11:55 PM Zablocki v. Redhail :: 434 U.S. 374 (1978) :: Justia US Supreme Court Center

Zablocki v. Redhail, 434 U.S. 374

(1978)

Justia Opinion Summary and Annotations

Annotation

Primary Holding
A law that significantly interferes with a certain group's ability to exercise a fundamental
right is invalid unless it furthers important state interests and is narrowly tailored to
pursue only those important goals.

Facts
Wisconsin withheld the right to marry in any state from its residents who had minor
children who were not in their custody and to whom they owed a child support obligation,
unless they received a court order giving them permission to marry. Redhail failed to
satisfy his child support obligations to an illegitimate child, and Zablocki, the County Clerk
of Milwaukee County, denied his application for marriage under this law because he had
not received court permission to marry. Redhail challenged the law under the Equal
Protection Clause. The lower court determined that strict scrutiny was the appropriate
standard of review because the statute restricted the fundamental right to marry. Based on
that standard of review, the lower court struck down the law and issued an injunction to
prevent Wisconsin county clerks from enforcing it.

Opinions

Majority
Thurgood Marshall (Author)

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10/16/21, 11:55 PM Zablocki v. Redhail :: 434 U.S. 374 (1978) :: Justia US Supreme Court Center

Warren Earl Burger

William Joseph Brennan, Jr.
Byron Raymond White
Harry Andrew Blackmun

The state justifies its law on the basis that it motivates child support payers to keep up with
their obligations and that it bolsters the welfare of children who are not in the payer's
custody. While these interests are legitimate and substantial, the state has not chosen a
narrowly tailored means to achieve its objectives. To the contrary, it has imposed an
unnecessary burden on the right to marry. The law simply withholds the right to marry
without offering any provision for counseling and without providing any money to the
children. The state has many other ways to address this issue without interfering with a
fundamental right.

Concurrence
Potter Stewart (Author)

There is no constitutionally protected right to marry, and the Equal Protection Clause is an
appropriate means for challenging classifications rather than violations of substantive
rights. The Due Process Clause is a more appropriate way to challenge this law.

Dissent
William Hubbs Rehnquist (Author)

Whether the statute is challenged under the Equal Protection Clause or the Due Process
Clause, it should be judged according to a rational basis standard of review. It meets this
standard because it fits within the state's widely accepted power to regulate family life.

Concurrence
Warren Earl Burger (Author)

Concurrence
Lewis Franklin Powell, Jr. (Author)

Concurrence
John Paul Stevens (Author)

Case Commentary
The right to marry traditionally has been defined as a fundamental right, similar to others
related to family life, such as procreation, childbirth, and raising a child.

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10/16/21, 11:55 PM Zablocki v. Redhail :: 434 U.S. 374 (1978) :: Justia US Supreme Court Center

Syllabus
Case

U.S. Supreme Court

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

Zablocki v. Redhail

No. 76-879

Argued October 4, 1977

Decided January 18, 1978

434 U.S. 374

Syllabus

Wisconsin statute providing that any resident of that State "having minor issue not in his
custody and which he is under obligation to support by any court order or judgment" may
not marry without a court approval order, which cannot be granted absent a showing that
the support obligation has been met and that children covered by the support order "are
not then and are not likely thereafter to become public charges," held to violate the Equal
Protection Clause of the Fourteenth Amendment. Pp. 434 U. S. 383-391.

(a) Since the right to marry is of fundamental importance, e.g., Loving v. Virginia, 388 U.
S. 1, and the statutory classification involved here significantly interferes with the exercise
of that right, "critical examination" of the state interests advanced in support of the
classification is required. Massachusetts Board of Retirement v. Murgia, 427 U. S. 307,
427 U. S. 312, 314. Pp. 383-387.

(b) The state interests assertedly served by the challenged statute unnecessarily impinge on
the right to marry. If the statute is designed to furnish an opportunity to counsel persons
with prior child support obligations before further such obligations are incurred, it neither
expressly requires counseling nor provides for automatic approval after counseling is
completed. The statute cannot be justified as encouraging an applicant to support his
h ld h d h h h l d h f

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10/16/21, 11:55 PM Zablocki v. Redhail :: 434 U.S. 374 (1978) :: Justia US Supreme Court Center

children. By the proceeding, the State, which already possesses numerous other means for
exacting compliance with support obligations, merely prevents the applicant from getting
married, without ensuring support of the applicant's prior children. Though it is suggested
that the statute protects the ability of marriage applicants to meet prior support obligations
before new ones are incurred, the statute is both underinclusive (as it does not limit new
financial commitments other than those arising out of the contemplated marriage) and
overinclusive (since the new spouse may better the applicant's financial situation). Pp. 434
U. S. 388-390.

418 F. Supp. 1061, affirmed.

Page 434 U. S. 375

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and
BRENNAN, WHITE, and BLACKMUN, JJ., joined. BURGER, C.J., filed a concurring
opinion, post, p. 434 U. S. 391. STEWART, J., post, p. 434 U. S. 391 POWELL, J., post, p.
434 U. S. 396, and STEVENS, J., post, p. 434 U. S. 403, filed opinions concurring in the
judgment. REHNQUIST, J., filed a dissenting opinion, post, p. 434 U. S. 407.

Oral Argument - October 04, 1977

Opinion Announcement - January 18, 1978

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10/16/21, 11:55 PM Zablocki v. Redhail - Wikipedia

Zablocki v. Redhail
Zablocki v. Redhail, 434 U.S. 374 (1978), was a U.S. Supreme
Court decision that held that Wisconsin Statutes §§ 245.10 (1), Zablocki v. Redhail
(4), (5) (1973) violated the Fourteenth Amendment Equal
Protection Clause.[1] Section 245.10 required noncustodial
parents who were Wisconsin residents attempting to marry inside
or outside of Wisconsin to seek a court order prior to receiving a
marriage license. In order to receive such a court order, the
noncustodial parent could not be in arrears on his or her child
support, and the court had to believe that the child(ren) would Supreme Court of the United
States
not become dependent on the State.[2]
Argued October 4, 1977

Decided January 18, 1978

Full case Thomas E. Zablocki,
Contents name Milwaukee County
History Clerk v. Roger G.
Redhail
Supreme Court Review
Citations 434 U.S. 374 (http
Majority Opinion
s://supreme.justia.co
Concurring Opinions
m/us/434/374/case.h
Burger's Concurrence tml) (more)
Stewart's Concurrence in the Judgment 98 S. Ct. 673; 54 L.
Powell's Concurrence in the Judgment Ed. 2d 618; 1978
Stevens's Concurrence in the Judgment U.S. LEXIS 57; 24
Rehnquist's Dissent Fed. R. Serv. 2d
(Callaghan) 1313
Subsequent implications
Argument Oral argument (http
See also s://www.oyez.org/ca
References ses/1970-1979/197
7/1977_76_879/argu
External links ment/)
Case history

History Prior Judgment in favor of

plaintiffs, 418 F.
Supp. 1061 (https://l
In 1972, Roger Redhail, then in high school, was sued in a
aw.justia.com/cases/
paternity action in Milwaukee County, Wisconsin. He admitted he
federal/district-court
was the father, and the court ordered him to pay child support in
s/FSupp/418/1061/1
the amount of $109 per month until the child reached eighteen
602709/) (E.D. Wis.
years of age, plus court costs. Since Redhail was in high school at
1976) (three-judge
the time, he had no way to pay the court costs or child support. It
court); probable
went in arrears, reaching a total of $3,732 by the end of 1974.
jurisdiction noted,
Meanwhile, Redhail's noncustodial child was a public charge, and
429 U.S. 1089
received $109 per month as support from the State of Wisconsin.
(1977).
Holding
https://en.wikipedia.org/wiki/Zablocki_v._Redhail 1/6
10/16/21, 11:55 PM Zablocki v. Redhail - Wikipedia

In 1974, Redhail attempted to obtain a marriage license in Wisconsin's statute requiring a

Milwaukee County. Due to the aforementioned § 245.10(1), one of noncustodial parent to obtain a court
the agents of the county clerk denied his application because he order before receiving a marriage
did not have a court order allowing him to marry. Redhail license, which may be issued only
proceeded to file a class action suit against Thomas Zablocki, who when the noncustodial parent is up
was the county clerk of Milwaukee County (and whose official to date on child support and such
capacity was to issue such licenses) under 42 U.S.C. § 1983, and child(ren) is(are) not likely to
since the action sought a permanent injunction against the become public charges, is
statute, 28 U.S.C. § 2281 (https://www.law.cornell.edu/uscode/te unconstitutional because the statute
xt/28/2281) (since repealed) then required a three-judge District violates the Fourteenth
Court.[3] Amendment's equal protection
clause. The case also reaffirms the
Judge John Reynolds wrote for the three-judge court. After status of marriage as a fundamental
disposing with issues regarding interactions with State court right.
actions and class action procedure, he reached the substantive Court membership
matter under which Redhail filed suit. Finding that the Wisconsin
statute created two separate classes of individuals, Reynolds then Chief Justice
Warren E. Burger
proceeded to observe that under a number of Supreme Court
decisions,[4] marriage was held to be a fundamental right. Associate Justices
Accordingly, the judge applied strict scrutiny to determine William J. Brennan Jr. · Potter
whether the Wisconsin statute could survive constitutional Stewart

Byron White · Thurgood Marshall

review.
Harry Blackmun · Lewis F. Powell
Examining the State's interest in the matter, Reynolds found that Jr.

William Rehnquist · John P.

while Wisconsin surely had a legitimate interest in counseling,
Stevens
that interest was not perceived as a compelling interest. While he
found that the State's interest in child welfare was potentially Case opinions
compelling, that interest was insufficient because the Wisconsin Majority Marshall, joined by
statute was not connected to the restriction imposed by the Burger, Brennan,
statute. As the Wisconsin law could not withstand strict scrutiny, White, Blackmun
Reynolds declared the law unconstitutional. Concurrence Burger
Concurrence Stewart
Supreme Court Review Concurrence Powell
Concurrence Stevens
When federal suits proceed in three-judge District Courts,
28 U.S.C. § 1253 (https://www.law.cornell.edu/uscode/text/28/1 Dissent Rehnquist
253) allows parties to appeal directly to the Supreme Court.[5] Laws applied
Accordingly, the Supreme Court noted probable jurisdiction, 429 U.S. Const. amend. XIV
U.S. 1089 (1977). The case was argued early in the October term
of 1977, and the judgment was issued in January 1978.

Majority Opinion

Justice Marshall wrote for the 5 justice majority court holding. Affirming the judgment of the District
Court, Marshall concurred with the District Court's reading of marriage being a fundamental right,
relying on Loving v. Virginia (1967) and Griswold v. Connecticut (1965). Marshall, however, diverged
from the District Court's analysis by refusing to apply strict scrutiny. Instead, he determined if
Wisconsin's law was "supported by sufficiently important state interests and is closely tailored to

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effectuate only those interests".[6] Marshall's standard is similar to strict scrutiny as his "closely
tailored" is similar to the strict scrutiny standard of requiring a statute to be narrowly tailored to the
interest,[7] but it requires only an "important state interest", which is akin to intermediate scrutiny.[8]

Applying this standard, Marshall examined the same two justifications that the District Court
confronted—child welfare and counseling noncustodial parents about their obligations. These
justifications are defeated because as Marshall explained, Wisconsin could find other ways to achieve
the interest without resorting to infringement of a fundamental right, and that the latter reason is
defective because it fails to achieve the objectives it sets out to meet (which is one of the necessities of
being narrowly tailored). Accordingly, Marshall affirmed the District Court by focusing the lack of
connection and efficacy of the measures Wisconsin advances, rather than confronting the importance
of Wisconsin's interests.

Concurring Opinions

Three of the Justices wrote concurring opinions. Chief Justice Warren Burger was part of the majority
opinion but wrote a separate one as well. Justices Stewart and Powell each wrote their own
concurrence agreeing with the judgment of the court.

Burger's Concurrence

Chief Justice Burger joined with Justice Marshall's opinion, and concurred separately to note that the
Wisconsin statute was an "intentional and substantial interference with the right to marry",
distinguishing this case from Califano v. Jobst (1977).[9]

Stewart's Concurrence in the Judgment

Justice Stewart reaches a conclusion nearly identical to the Court's conclusion, but wholly rejects the
Court's equal protection analysis, likening it to be the improper analysis for the denial of a right.
Stewart disagrees with the majority's contention that there is a fundamental right to marry, or even an
explicit right to marry at all. Rather, he grounds his analysis in the liberty interest of the Fourteenth
Amendment due process clause.[10] Reasoning that lacking money is not an acceptable reason to
restrict a person's liberty, he concludes that the traditions of the United States forbid such a
restriction, and that the proper justification for holding the law to be unconstitutional is substantive
due process.[11]

Powell's Concurrence in the Judgment

Justice Powell concurs in the judgment in a similar manner to Justice Stewart. Powell's primary
concern is that the near-application of strict scrutiny and the use of the equal protection clause is too
strong and interferes with the legitimate regulation of the State on marriage.[12] Similar to Justice
Stewart, Powell would use the due process clause, but invoke it in a way that would be flexible enough
to allow the State to pass reasonable regulations (regulations that probably would not be upheld
under Marshall's standard).

Stevens's Concurrence in the Judgment

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Justice Stevens's concurrence in the judgment is different from the other two because he wishes to
distinguish between different kinds of classifications. Stevens states that "[a] classification based on
marital status is fundamentally different from a classification which determines who may lawfully
enter into the marriage relationship."[13] In making this distinction, Stevens wishes to separate
Zablocki and Loving from Califano v. Jobst. The intent of his opinion is to illustrate that distinctions
between married and unmarried people are largely acceptable, whereas bars to marriage itself should
be treated with skepticism. Further, he too concludes that the methods of Wisconsin's law fall far
short of achieving its objectives (reasoning through multiple claims that Wisconsin's desired outcome
does not comport with the reality of the situation).

Rehnquist's Dissent

Justice Rehnquist was the only justice to dissent completely from the ruling of the court. Agreeing
with Justice Powell, Rehnquist concludes that there is no fundamental right to marriage. Further he
would conclude that the appropriate measure for this case is the rational basis test[14]—that the law
need be only rationally related to a legitimate State interest. Rehnquist contended that the
appropriate frame of analysis for the Court should be one that is deferential to the concerns of the
legislature. The key to this viewpoint is the realization that Wisconsin "'adopted this rule in the course
of constructing a complex social welfare system that necessarily deals with the intimacies of family
life'"[15]—that Wisconsin made a "permissible exercise of [its] power" even though its results may not
be as intended.

Rehnquist also disagreed that Redhail had standing to bring his claim. Examining the record of the
District Court and of oral arguments, he finds that it was never verified that Redhail could not pay for
his child support obligations. With this argument, the Justice notes that Redhail may not be an
acceptable member of his class and thus might not have been able to bring the challenge that he
brought. However Rehnquist notes that because he finds the law to be valid, there is no need to reach
the question of standing.[16]

Subsequent implications
Zablocki has been cited as precedent and is now considered to be part of a constitutional fundamental
right to marry, along with cases like Loving v. Virginia, Turner v. Safley, and Obergefell v. Hodges,
the Court has declared a fundamental right to marriage under the Fourteenth Amendment.[17]

See also
List of United States Supreme Court cases, volume 434

References
1. Zablocki v. Redhail, 434 U.S. 374 (https://supreme.justia.com/cases/federal/us/434/374/) (1978).
 This article incorporates public domain material from this U.S government document.

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2. The text of the statute was:

245.10 Permission of court required for certain marriages

(1) No Wisconsin resident having minor issue not in his custody and which he is under obligation
to support by any court order or judgment, may marry in this state or elsewhere, without the order
of either the court of this state which granted such judgment or support order, or the court having
divorce jurisdiction in the county of this state where such minor issue resides or where the
marriage license application is made. No marriage license shall be issued to any such person
except upon court order. The court, within 5 days after such permission is sought by verified
petition in a special proceeding, shall direct a court hearing to be held in the matter to allow said
person to submit proof of his compliance with such prior court obligation. No such order shall be
granted, or hearing held, unless both parties to the intended marriage appear, and unless the
person, agency, institution, welfare department or other entity having the legal or actual custody of
such minor issue is given notice of such proceeding by personal service of a copy of the petition
at least 5 days prior to the hearing, except that such appearance or notice may be waived by the
court upon good cause shown, and, if the minor issue were of a prior marriage, unless a 5-day
notice thereof is given to the family court commissioner of the county where such permission is
sought, who shall attend such hearing, and to the family court commissioner of the court which
granted such divorce judgment. If the divorce judgment was granted in a foreign court, service
shall be made on the clerk of that court. Upon the hearing, if said person submits such proof and
makes a showing that such children are not then and are not likely thereafter to become public
charges, the court shall grant such order, a copy of which shall be filed in any prior proceeding
under s. 52.37 or divorce action of such person in this state affected thereby; otherwise
permission for a license shall be withheld until such proof is submitted and such showing is made,
but any court order withholding such permission is an appealable order. Any hearing under this
section may be waived by the court if the court is satisfied from an examination of the court
records in the case and the family support records in the office of the clerk of court as well as from
disclosure by said person of his financial resources that the latter has complied with prior court
orders or judgments affecting his minor children, and also has shown that such children are not
then and are not likely thereafter to become public charges. No county clerk in this state shall
issue such license to any person required to comply with this section unless a certified copy of a
court order permitting such marriage is filed with said county clerk.

(4) If a Wisconsin resident having such support obligations of a minor, as stated in sub. (1),
wishes to marry in another state, he must, prior to such marriage, obtain permission of the court
under sub. (1), except that in a hearing ordered or held by the court, the other party to the
proposed marriage, if domiciled in another state, need not be present at the hearing. If such other
party is not present at the hearing, the judge shall within 5 days send a copy of the order of
permission to marry, stating the obligations of support, to such party not present.

(5) This section shall have extraterritorial effect outside the state; and s. 245.04(1) and (2) are
applicable hereto. Any marriage contracted without compliance with this section, where such
compliance is required, shall be void, whether entered into in this state or elsewhere.

Redhail v. Zablocki, 418 F. Supp. 1061 (https://law.justia.com/cases/federal/district-courts/FSupp/4

18/1061/1602709/), 1063, n. 1 (E.D. Wis. 1976).
3. Redhail, 418 F. Supp. at 1064.
4. Reynolds mentions Roe v. Wade, Boddie v. Connecticut (1971), Loving v. Virginia, Griswold v.
Connecticut, Skinner v. Oklahoma (1942), and Meyer v. Nebraska (1923), among other lower
court decisions. Redhail, 418 F. Supp. at 1069.
5. See 28 U.S.C. § 1253 (https://www.law.cornell.edu/uscode/text/28/1253).
6. Zablocki, 434 U.S. at 388.

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7. See, e.g., Roe v. Wade, 410 U.S. 113, 155 (https://supreme.justia.com/cases/federal/us/410/113/#

155) (1973) ("[R]egulation[s] limiting [fundamental] rights may be justified only by a 'compelling
state interest,' and ... legislative enactments must be narrowly drawn to express only the
legitimate state interests at stake.") (citations omitted).
8. See, e.g., Mississippi University for Women v. Hogan, 458 U.S. 718, 721-22 (https://supreme.justi
a.com/cases/federal/us/458/718/#721-22) (1982) ("the proper test is whether the State has ...
show[n] that the ... classification is substantially related to an important governmental objective.")
(confronting sex-based classifications).
9. Zablocki, 434 U.S., at 391 (Burger, C.J., concurring).
10. Zablocki, 434 U.S. at 391-392 (Stewart, J., concurring in the judgment).
11. Zablocki, 434 U.S. at 394-395 (Stewart, J., concurring in the judgment). For the root of this kind of
analysis, see Palko v. Connecticut, 302 U.S. 319, 325 (1937) (finding that protected practices are
"principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental.").
12. For example, Powell is concerned that an inflexible application of the equal protection clause
would prohibit the State from making laws on "incest, bigamy, and homosexuality", among other
conditions. Zablocki, 434 U.S., at 399 (Powell, J., concurring in the judgment).
13. Zablocki, 434 U.S. at 403-404 (Stevens, J., concurring in the judgment).
14. Zablocki, 434 U.S. at 407 (Rehnquist, J., dissenting).
15. Zablocki, 434 U.S. at 408 (Rehnquist, J., dissenting).
16. Zablocki, 434 U.S. at 409-410 (Rehnquist, J., dissenting).
17. "Opinions" (https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf) (PDF).
www.supremecourt.gov.

External links
Text of Zablocki v. Redhail, 434 U.S. 374 (1978) is available from: CourtListener (https://www.cour
tlistener.com/opinion/109768/zablocki-v-redhail/)  Findlaw (https://caselaw.findlaw.com/us-suprem
e-court/434/374.html)  Google Scholar (https://scholar.google.com/scholar_case?case=13286124
172413088195)  Justia (http://supreme.justia.com/us/434/374/case.html)  Library of Congress (htt
p://cdn.loc.gov/service/ll/usrep/usrep434/usrep434374/usrep434374.pdf)  Oyez (oral argument
audio) (https://www.oyez.org/cases/1977/76-879) 

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