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The Fundamental Right to Marry in the U.S.


On December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR), proclaiming a list of fundamental rights to which all humans are entitled regardless of race, color, religion, sex, language, political affiliation, national origin, or birth status. The idea of inalienable human rights is a profound concept that informs the legal foundations of many modern societies today.

In the United States, many legal scholars and authorities subscribe to the notion that the U.S. Constitution enshrines certain fundamental rights that arise by its express terms or through implication. Today, the idea of fundamental rights is enforced through Section 1 of the Fourteenth Amendment of the Constitution, which reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The U.S. Supreme Court has interpreted the Constitution to recognize the existence of several fundamental rights that were not expressly stated, including an individual’s right to marry.

Similarly, the UDHR proclaims that the right to marry is an inalienable human right. Article 16 of the UDHR provides that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

This blog post discusses the fundamental right to marriage and its development through American legal history.

Obergefell v. Hodges

In 2015, the U.S. Supreme Court issued a landmark decision recognizing the right to marry as applied to same-sex couples. The Court held that the government may not infringe on a person’s fundamental right to marry on the basis of their sexual orientation, reasoning that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” However, for most of American history until Obergefell, the fundamental nature of the right to marry had more slowly evolved over time.

Anti-Miscegenation Laws in the United States

After the American Civil War and the abolition of slavery, many southern states passed laws prohibiting interracial marriage—also known as anti-miscegenation laws.

In 1883, the U.S. Supreme Court was confronted with a case challenging the constitutionality of an Alabama anti-miscegenation statute in Pace v. Alabama. The challengers argued that Alabama’s anti-miscegenation laws violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

The Court in Pace held the anti-miscegenation laws did not violate the Fourteenth Amendment because their prohibitions applied to everyone regardless of their race, and thus equally burdened both white people and non-whites alike.

Loving v. Virginia

The anti-miscegenation laws of the South maintained prevalence until around the mid-twentieth century. In particular, the State of Virginia enacted an anti-miscegenation law as part of its Racial Integrity Act, making interracial marriage a felony punishable by a prison sentence of at least one year, not to exceed five years.

In 1967, the U.S. Supreme Court was tasked with reviewing the constitution of the Racial Integrity Act in Loving v. Virginia. This time, however, the Court overturned its previous decision in Pace v. Alabama, holding that Virginia’s anti-miscegenation laws violated the Equal Protection Clause. The reasoning was that “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” The Court went on to say that “Marriage is one of the ‘basic civil rights of man. Fundamental to our very existence and survival.”

Following Loving, the Court struck down other laws that seemed to restrict a person’s right to marry. For example, in Zablocki v. Redhail, the Court struck down a Wisconsin law prohibiting a man from remarrying because they owed overdue child support payments. Loving and Zablocki helped pave the way for the Supreme Court’s decision in Obergefell.

Limitations on the Right to Marry

The right to marry is not absolute. States can and do impose certain regulations on marriage. For instance, most states do not allow minor children below a certain age to get married without first obtaining parental consent or court approval. Additionally, all fifty states have prohibitions on polygamy, even though the practice is considered normal in some other cultures, and most—if not all states—restrict marriage to close family members.

Coker, Robb & Cannon, Family Lawyers Provides Comprehensive Legal Advice

The law governing marriage and domestic relations not only has a complicated past but also presents complicated legal issues for families today. To better understand your legal rights and options, you should consult a skilled attorney from Coker, Robb & Cannon, Family Lawyers.

For an initial case evaluation concerning the merits of your case, please call us at (940) 293-2313 or contact us online today.