Also known as: ius connubii · right to marry · marriage right
Written by attorneys — see sources below.
A Roman-law right consisting of the legal capacity to enter a valid marriage and the bundle of family-law incidents that flow from that capacity. The right includes the authority to contract marriage according to prescribed forms and to enjoy the resulting status-based privileges such as patria potestas over children.
Jonathan Jaffe owes unpaid child support under a court order. When he applies for a marriage license to wed Jennifer Jackson, the clerk refuses without prior judicial approval. The denial directly burdens Jaffe's exercise of the right to marry and forces him to litigate the support compliance issue before the marriage can proceed.
Jerome Jackson and his wife Jacqueline Juarez enter a gestational surrogacy contract with Julia Jensen. After the child is born, a dispute arises over parentage. The court must decide whether the marital presumption of legitimacy attaches because the couple possessed the legal capacity to marry and did marry before the birth.
In 1984 Crispina Calvert underwent a hysterectomy that left her ovaries capable of producing eggs. She and her husband Mark desired a child genetically related to both of them. In 1989 Anna Johnson, a licensed vocational nurse who had previously given birth to a daughter, learned of Crispina's situation from a coworker and offered to serve as a surrogate. On January 15, 1990, Mark, Crispina, and Anna signed a written contract providing that an embryo created from Mark's sperm and Crispina's egg would be implanted in Anna, who would carry the child to term and relinquish all parental rights to the Calverts upon birth. In exchange the Calverts agreed to pay Anna $10,000 in installments, with the final payment due six weeks after birth, and to purchase a $200,000 life insurance policy on Anna's life. The zygote was implanted on January 19, 1990, and an ultrasound confirmed Anna's pregnancy less than a month later. During the pregnancy relations between the parties deteriorated. Anna felt the Calverts were not providing sufficient attention or obtaining the required insurance policy in a timely manner. In July 1990 Anna demanded the balance of the payments or she would refuse to relinquish the child. The following month the Calverts filed suit in superior court seeking a declaration that they were the legal parents of the unborn child. Anna filed her own action to be declared the mother, the cases were consolidated, and the parties agreed to the appointment of a guardian ad litem for the child. The child was born on September 19, 1990. Blood samples taken from Anna and the child excluded Anna as the genetic mother. The parties stipulated that Mark and Crispina were the genetic parents. After a trial in October 1990 the superior court ruled that the Calverts were the child's genetic, biological, and natural parents, that Anna had no parental rights, that the surrogacy contract was enforceable, and that Anna was not entitled to visitation. Anna appealed. The Court of Appeal for the Fourth District, Division Three, affirmed the judgment. The Supreme Court of California granted review.
View caseJoanna Jung and her fiancé seek to use a municipal pool for a wedding-related gathering. City officials close the facility rather than integrate it. The closure prevents the couple from exercising ordinary incidents of their planned marriage in a public setting open to others.
In 1962 Negro citizens of Jackson, Mississippi, brought a class action in the United States District Court against the city and its officials, including Mayor Allen C. Thompson and Parks Director George Kurts, challenging the city's maintenance of racially segregated public recreational facilities. At that time the city operated five swimming pools on a segregated basis, with four reserved for white use and one for Negro use, along with segregated parks, golf courses, auditoriums, and a zoo. The district court entered a declaratory judgment that enforced segregation denied equal protection of the laws but declined to issue an injunction; the Court of Appeals affirmed and this Court denied certiorari. Following the district court's judgment the city desegregated its public parks, auditoriums, golf courses, and zoo. The city council, however, surrendered its lease on one pool and closed the four pools it owned outright rather than operate any of them on an integrated basis, and no municipal swimming facilities have operated since that time. In 1965 Negro citizens filed the present class action seeking declaratory and injunctive relief to compel the city to reopen and operate the pools on a desegregated basis. The district court, relying on affidavits from Mayor Thompson and Parks Director Kurts stating that the pools could not be operated safely, peacefully, or economically on an integrated basis, found the closings justified to preserve peace and order and dismissed the complaint. On appeal the Court of Appeals for the Fifth Circuit, sitting en banc, affirmed the dismissal by a vote of seven to six. The Supreme Court granted certiorari to review the equal protection claim arising from the pool closings.
View caseJonathan Jaffe's father leaves a bequest conditioned on Jaffe marrying a woman whose both parents are Jewish within seven years. Jaffe challenges the condition as an invalid restraint on his freedom to choose a spouse. The court must determine whether the testamentary restriction impermissibly burdens the underlying right to marry.
David Shapira, M. D., died April 13, 1973, a resident of this county. This is an action for a declaratory judgment and the construction of the will of David Shapira, M. D. By agreement of the parties, the case has been submitted upon the pleadings and the exhibit. The portions of the will in controversy provide that the residue goes to the testator's three beloved children, Buth Shapira Aharoni, Daniel Jacob Shapira, and Mark Benjamin Simon Shapira in equal shares with qualifications. The will states that Daniel Jacob Shapira should receive his share of the bequest only if he is married at the time of the testator's death to a Jewish girl whose both parents were Jewish. In the event that at the time of the testator's death he is not married to a Jewish girl whose both parents were Jewish, then his share should be kept by the executor for a period of not longer than seven years. If Daniel Jacob gets married within the seven year period to a Jewish girl whose both parents were Jewish, the executor is instructed to turn over his share to him. In the event that Daniel Jacob is unmarried within the seven years after the testator's death to a Jewish girl whose both parents were Jewish, or if he is married to a non Jewish girl, then his share should go to the State of Israel, absolutely. The provision for the testator's other son Mark is conditioned substantially similarly. Daniel Jacob Shapira, the plaintiff, is twenty-one years of age, unmarried and a student at Youngstown State University. The plaintiff alleges that the condition upon his inheritance is unconstitutional, contrary to public policy and unenforceable because of its unreasonableness, and that he should be given his bequest free of the restriction.
View caseJennifer Jackson seeks an abortion at a clinic but is told she must first notify her husband. The statute imposes the notice requirement only on married women. Jackson argues that the rule conditions exercise of a medical choice on her marital status and thereby burdens the incidents that flow from her marriage.
The Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, established several requirements governing the performance of abortions within the Commonwealth. The Act required a woman seeking an abortion to provide informed consent after receiving specific information from a physician or counselor at least twenty-four hours before the procedure. It mandated that a minor obtain the informed consent of one parent, subject to a judicial bypass option. It further required a married woman to sign a statement confirming that she had notified her husband of her planned abortion, unless certain exceptions applied. The Act also imposed reporting obligations on facilities providing abortion services and defined a medical emergency exception to the various requirements. Before any of these provisions took effect, the petitioners brought suit in the United States District Court for the Eastern District of Pennsylvania. The petitioners were five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services. They sought declaratory and injunctive relief and challenged each provision as unconstitutional on its face. The District Court entered a preliminary injunction. After conducting a three-day bench trial, the District Court held all the provisions unconstitutional and entered a permanent injunction against their enforcement by Pennsylvania. The Court of Appeals for the Third Circuit affirmed in part and reversed in part. It adopted the District Court's factual findings and legal analysis except with respect to the spousal notification requirement. The Court of Appeals upheld the spousal notification requirement as constitutional and applied the undue burden standard in evaluating the provisions. The Supreme Court granted certiorari to consider the constitutionality of the challenged provisions of the Pennsylvania statute.
View caseJerome Jackson and his same-sex partner apply for a marriage license in a state that previously refused recognition. After the license issues, they seek spousal benefits at a state university. Officials initially deny the benefits, claiming the marriage lacks legal capacity under prior state definitions.
The petitioners were fourteen same-sex couples and two men whose same-sex partners were deceased. They lived in Michigan, Kentucky, Ohio, and Tennessee. Those states defined marriage as a union between one man and one woman under their constitutions and statutes. The petitioners filed suits in federal district courts in their home states. They sought marriage licenses or recognition of marriages lawfully performed elsewhere. James Obergefell and John Arthur traveled from Ohio to Maryland to marry aboard a medical transport plane because Arthur suffered from ALS; Obergefell later sought to be listed as surviving spouse on Arthur's death certificate. April DeBoer and Jayne Rowse, Michigan nurses, adopted three children but could not both serve as legal parents under state adoption rules. Army Reserve Sergeant Ijpe DeKoe and Thomas Kostura married in New York before DeKoe's deployment to Afghanistan and later settled in Tennessee. Each district court ruled in the petitioners' favor. The respondents appealed. The Sixth Circuit consolidated the cases and reversed the district court judgments. The petitioners sought certiorari, which the Supreme Court granted. Same-sex couples had begun establishing families after substantial cultural and political developments in the late twentieth century. Earlier litigation had addressed the legal status of gays and lesbians, including challenges that reached the Supreme Court in Bowers v. Hardwick and Lawrence v. Texas.
View caseIt includes the full set of family-law incidents that attach once a valid marriage is formed, such as the right to exercise patria potestas over children and other status-based privileges recognized under Roman law.
A statute that significantly interferes with the fundamental right to marry must be supported by sufficiently important state interests and must be closely tailored to effectuate only those interests.
Yes. Once a marriage is validly celebrated, the state must extend the same constellation of rights and responsibilities to same-sex couples that it affords to opposite-sex couples.
Supporting sources
No. A requirement that persons with unpaid support obligations obtain court permission before marrying is not narrowly tailored to the state's collection interests and therefore violates the fundamental right to marry.
…than the absence of physical restraint." The Court has said that the liberty protected by the Due Process Clause includes the right to marry, Loving v. Virginia , 388 U.S. 1 (1967); the right to have children, Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535 (1942); the right to direct the education and upbringing of…