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

Perry Dane

Rutgers School of Law - Camden

Encyclopedia of American Civil Liberties, Vol. 3, pp. 1811-1812, 2006

This piece is an encyclopedia entry on Zablocki v. Redhail. Zablocki is one of a handful of modern Supreme Court cases, the most famous being Loving v. Virginia, exploring the constitutional right to marry. Zablocki stands out, however, because it provokes this central question: In what precise sense is marriage, by some accounts a purely positive creation of the state, a constitutional right?

Zablocki concerned a challenge to a Wisconsin statute that forbid residents with support obligations to non-custodial minor children from marrying unless they could demonstrate that they were complying with those obligations. Justice Marshall's majority opinion approached the case as an equal protection problem, holding that the freedom to marry was "fundamental" for equal protection purposes and that the state statute could not survive strict scrutiny. The Court's opinion, however, skirted the question whether the "fundamental" right to marry was a basic entitlement, like the right to speech, or only a right of equal access. Some of the other opinions, though, in particular Justice Stewart's concurrence in the judgment, faced this issue more directly. Stewart argued that the case did not involve equal protection at all, but rather a liberty interest protected as a matter of substantive due process. He also wrote that, although States could exercise their traditional power to regulate marriage, and could even prohibit some marriages entirely, "there is a limit beyond which a State may not constitutionally go."

The issues raised in Zablocki echo in contemporary debates about marriage. Most obviously, they are crucial to whether there might be a right to same-sex marriage. More intriguingly, since some commentators have argued that the government should abolish civil marriage entirely, it has now become a matter of more than theoretical interest whether such a move would be constitutionally permissible.

Number of Pages in PDF File: 2

Keywords: Marriage, Same-Sex Marriage, State regulation of marriage, Civil Unions, Equal Protection Clause , Due Process Clause, Fundamental Rights, Substantive Due Process, Natural Rights Jurisprudence, Strict Scrutiny

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Date posted: July 18, 2007  

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Dane, Perry, Zablocki V. Redhail, 434 U.S. 374 (1978). Encyclopedia of American Civil Liberties, Vol. 3, pp. 1811-1812, 2006. Available at SSRN: http://ssrn.com/abstract=1001132

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