Monthly Archives: April 2015

On Same-Sex Marriage Part 3: Rights and Restrictions

I’m currently swamped with law school. I have another research paper coming up and midterms. I also have have the Bar to prepare for and final exams will be coming up quicker than I’d like. I don’t want to neglect my blog so I decided to post a legal paper I wrote for class last year. I edited and formatted it for this blog. I also took out a good chunk of the more technical discussions of constitutional law and rewrote certain sections to make more sense for those who don’t speak legalese. Enjoy. I’ll be around for discussion and comments. I’m also ready for the inevitable charges of homophobia and bigotry; wouldn’t miss it for the world.


Last time, I discussed the tension between the right to marry and the state’s ability to regulate marriage. There has been some guidance by the Supreme Court on the limits of the right to marry  As I said before, just saying that someone has a right to marry, by itself, makes no sense if the government impose rules on who, what and when you can marry. For now it would seem that we can say that the right to marry is held by individual people. It is not a right that state has, nor a right that belongs to a vague, ill-defined group of people.

However, the statement “Individuals have a fundamental right to marry” still doesn’t work. Who or what do individuals have a right to marry; the verb, “marry” requires an object because it would be too broad otherwise. People “do not have a right to marry their dog, their aunt, June 29, a rose petal, or a sunny day” [1]. This right doesn’t give us permission to marry whoever we want; we all acknowledge the presence and argue for the necessity of certain laws that restrict our freedom to marry.  So the right to marry doesn’t mean simply that people have the right to marry whoever or whatever they want. People have right to marry as long they marry within permissible boundaries put up by the state. Laws regulating bigamy, polygamy, incest, and same-sex marriage all restrict who an individual can marry.

So now the right to marry becomes:  “individuals have a right to marry so long as they marry within state regulations.” However, such a right to marry would be meaningless if the state could regulate it to infinity. The state can’t put up so many rules to the point that it arranges marriages for us. The Supreme Court specifically stated that “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” [2] While we have a guideline, this isn’t much of one. Professor Joseph Pull criticizes this guideline because the Court did not “provide any rubric for determining what regulations are ‘reasonable’ and ‘do not significantly interfere with decisions to marry” [3]. Furthermore, the court does not elaborate on what exactly counts as a substantial and direct interference with the right to marry. However, the court has said that when a certain class of people is “absolutely prevented from getting married”, that is unreasonable [4].

So what does a mean for someone to be absolutely prevented from getting married? In Zablocki v. Redhail, where the SCOTUS said the above, we had a Wisconsin law that required residents who had to pay child support to get court approval in order to marry. Such a law could prevent people from getting married to anyone at all if the court did not approve. However, this is arguably different from same-sex marriage. A gay man who wants to marry another man isn’t absolutely prevented from getting married. He can still marry woman. He isn’t barred completely from marriage like the person in the Zablocki case was. The objection I’ve heard is that this gay man is barred from marrying who he loves. Well, so is a pedophile who is only in love with prepubescent girls; this pedophile will be prevented from marrying who he loves but that fact alone doesn’t justify overturning age of consent laws.

[1] Cass R. Sunstein, “The Right to Marry”, 26 Cardozo L. Rev. 2081, 2081 (2005)

[2] Zablocki v. Redhail 434 U.S. 374, 386 (1978)

[3]  Joseph Pull, “Questioning the Fundamental Right to Mary” 90 Marq. L. Rev 38-39

[4] Zablocki v. Redhail 434 U.S. 374, 387 (1978)