Ex Parte Kinney, 14 Fed.Cas. page 602 (Case No. 7,825) (1879)Foreigners
Against White Persons
"Marriage
is a privilege belonging to persons as members of society, and as citizens
of the states in which they reside, and may be abridged at the will
of the states in which they reside.
Marriage,
though a contract, is more than a civil contract, and is not affected
by the clause of the 10th section of the 1st article of the constitution
forbidding a state from passing any laws impairing the obligation of
contracts.
The fifteenth
amendment embodies the implication that a state may abridge any privileges
of its citizens other than that of voting."
[Ex Parte
Kinney, 14 Fed.Cas. page 602 (Case No. 7,825) (1879)Foreigners Against
White Persons]
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.
[Zablocki
v. Redhail, 434 U.S. 374 (1978)]
I agree with MR. JUSTICE HARLAN's statement in
his dissenting opinion in Poe v. Ullman,
367 U.S. 497, 551 -552: "Certainly the safeguarding of the home
does not follow merely from the sanctity of property rights. The
home derives its pre-eminence as the seat of family life. And the
integrity of that life is something so fundamental that it has been
found to draw to its protection the principles of more than one
explicitly granted Constitutional right. . . . Of this whole `private
realm of family life' it is difficult to imagine what is more private
or more intimate than a husband and wife's marital relations."
The entire fabric of the Constitution and the
purposes that clearly underlie its specific guarantees demonstrate
that the rights to marital privacy and to marry and raise a family
are of similar order and magnitude as the fundamental rights specifically
protected.
Although the Constitution does not speak in so
many words of the right of privacy in marriage, I cannot believe
that it offers these fundamental rights no protection. The fact
that no particular provision of the Constitution
[381 U.S. 479, 496]
explicitly forbids the State from disrupting the
traditional relation of the family - a relation as old and as fundamental
as our entire civilization - surely does not show that the Government
was meant to have the power to do so. Rather, as the Ninth Amendment
expressly recognizes, there are fundamental personal rights such
as this one, which are protected from abridgment by the Government
though not specifically mentioned in the Constitution.
[Griswold
v. Connecticut, 381 U.S. 479 (1965)]