KC Johnson

Feb. 28: The Path to Loving

  • Peggy Pascoe article, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Journal of American History
  • Gregory Dorr article, “Principled Expediency: Eugenics, Naim v. Naim, and the Supreme Court,” American Journal of Legal History

Supreme Court of Virginia [U.S. Supreme Court didn’t hear case.]
NAIM v. NAIM, 197 Va. 80; 87 S.E.2d 749 (1955)
HAN SAY NAIM v. RUBY ELAINE NAIM
Decided June 13, 1955.

BUCHANAN, J., delivered the opinion of the court.
This is an appeal from a decree of the court below holding the marriage between the appellant and the appellee to be void underß 20-54 of the Code of Virginia, 1950, which is part of “An ACT to preserve racial integrity,” enacted by the General Assembly and approved March 20, 1924 (Acts 1924, ch. 371).

The material facts are not in dispute. The suit was brought by the appellee, who is a white person, duly domiciled in Virginia. The appellant is a Chinese and was a non-resident of the State at the time of the institution of the suit. On June 26, 1952, they left Virginia to be married in North Carolina. They were married in that State and immediately returned to Norfolk, Virginia, where they lived together as husband and wife. It is conceded that they left Virginia to be married in North Carolina for the purpose of evading the Virginia law which forbade their marriage.

The Virginia statute, ß 20-54, in effect at the time of the marriage, is as follows:

“It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term ‘white person’ shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.”

Virginia statutes regarding the intermarriage of white and colored persons in effect at the date of the marriage, and now in effect, provide that all marriages between a white person and a colored person shall be absolutely void ( ß 20-57); that if a white person and a colored person go out of the State for the purpose of being married and with the intention of returning, and after being married return and reside here, and cohabit as man and wife, they shall be punished as provided in ß 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. Section 20-59 provides that they shall be guilty of a felony and confined in the penitentiary for not less than one nor more than five years.

As stated in appellant’s brief, the only question at issue is whether the marriage of the appellant and appellee could be annulled on the ground of their racial ineligibility to marry one another.

The real issue [is] whether the statute in question is beyond the power of the State to enact under the Due Process and Equal Protection clauses of the Fourteenth Amendment.

Marriage, the appellant concedes, is subject to the control of the States. Nearly seventy years ago the Supreme Court said, and it has said nothing to the contrary since: “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.” Maynard v. Hill, 125 U.S. 190, 31 L. Ed. 654, 657, 8 S. Ct. 723. And nine years before that: “Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.” Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244, 250. That case was written by Chief Justice Waite, who said, in upholding a conviction of bigamy against a defense on the ground of the religious practice of polygamy authorized by the defendant’s church, “it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.”

In the same year, 1878, it was written by this court, in Kinney v. Commonwealth, 71 Va. 284 (30 Gratt.) 858, 862:

“There can be no doubt as to the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying. The right to regulate the institution of marriage; to classify the parties and persons who may lawfully marry; to dissolve the relation by divorce; and to impose such restraints upon the relation as the laws of God, and the laws of propriety, morality and social order demand, has been exercised by all civilized governments in all ages of the world.”

More recently, in Wood v. Commonwealth, 159 Va. 963, 965, 166 S.E. 477, this court said “that the preservation of racial integrity is the unquestioned policy of this State, and that it is sound and wholesome, cannot be gainsaid.” And in Toler v. Oakwood &c. Corp., 173 Va. 425, 434, 4 S.E.2d 364, 368: “There can be no question of the public policy of Virginia with reference to miscegenation.”

In State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42, a statute prohibiting the intermarriage of negroes and white persons was held not to violate any provision of the Fourteenth Amendment or the Civil Rights laws. In the course of a well-reasoned and well-supported discussion of the powers retained by and inherent in the States under the Constitution, the court said:

“In this State marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society. *** The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the states suffer or permit any interference therewith. If the federal government can determine who may marry in a state, there is no limit to its power. * * *.” 36 Ind. at 402-3.

It was said in that case that the question was one of difference between the races, not of superiority or inferiority, and that the natural law which forbids their intermarriage and the social amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures.

More than half of the States of the Union have miscegenation statutes. With only one exception they have been upheld in an unbroken line of decisions in every State in which it has been charged that they violate the Fourteenth Amendment…

Brown v. Board of Education, supra, reached its conclusion that segregation in the public schools was contrary to the Equal Protection clause on the basis that education is perhaps the most important function of State and local governments, “the very foundation of good citizenship,” and that the opportunity to acquire it, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

No such claim for the intermarriage of the races could be supported; by no sort of valid reasoning could it be found to be a foundation of good citizenship or a right which must be made available to all on equal terms. In the opinion of the legislatures of more than half the States it is harmful to good citizenship.
….

The institution of marriage has from time immemorial been considered a proper subject for State regulation in the interest of the public health, morals and welfare, to the end that family life, a relation basic and vital to the permanence of the State, may be maintained in accordance with established tradition and culture and in furtherance of the physical, moral and spiritual well-being of its citizens.

We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.

Regulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States’ rights, somewhat battered perhaps but still a sturdy fortress in our fundamental law, the tenth section of the Bill of Rights, which declares: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

The decree appealed from is affirmed.

———-

WARREN, C.J., Opinion of the Court

SUPREME COURT OF THE UNITED STATES


388 U.S. 1

Loving v. Virginia

APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA


No. 395 Argued: April 10, 1967 — Decided: June 12, 1967


MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court  of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.  Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying other than another “white person,”  a prohibition against issuing marriage licenses until the issuing official is satisfied that [p7] the applicants’ statements as to their race are correct, certificates of “racial composition” to be kept by both local and state registrars,  and the carrying forward of earlier prohibitions against racial intermarriage.

I

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1965 decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of the doctrine of White Supremacy. Id.at 90, 87 S.E.2d at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State’s police power, Maynard v. Hill, 125 U.S. 190(1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska,262 U.S. 390 (1923), and Skinner v. Oklahoma, 316 U.S. 535 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes, and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem that, although these historical sources “cast some light” they are not sufficient to resolve the problem;

[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments, and wished them to have the most limited effect.

Brown v. Board of Education, 347 U.S. 483, 489 (1954). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U.S. 184 (1964).

The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated “Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.”McLaughlin v. Florida, supra, at 188. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. 

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U.S. 81, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. …

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. 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.

II

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

These convictions must be reversed.

—–

ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978)

434 U.S. 374ZABLOCKI, MILWAUKEE COUNTY CLERK v. REDHAIL
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
WISCONSIN
No. 76-879.

Argued October 4, 1977
Decided January 18, 1978

Wisconsin statute providing that any resident of that State “having minor issue not in his custody and which he is under obligation to support by any court order or judgment” may not marry without a court approval order, which cannot be granted absent a showing that the support obligation has been met and that children covered by the support order “are not then and are not likely thereafter to become public charges,” held to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 383-391.

    (a) Since the right to marry is of fundamental importance, e. g., Loving v. Virginia,

388 U.S. 1 

    , and the statutory classification involved here significantly interferes with the exercise of that right, “critical examination” of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia,

427 U.S. 307, 312 

    , 314. Pp. 383-387.
    (b) The state interests assertedly served by the challenged statute unnecessarily impinge on the right to marry. If the statute is designed to furnish an opportunity to counsel persons with prior child-support obligations before further such obligations are incurred, it neither expressly requires counselling nor provides for automatic approval after counseling is completed. The statute cannot be justified as encouraging an applicant to support his children. By the proceeding the State, which already possesses numerous other means for exacting compliance with support obligations, merely prevents the applicant from getting married, without ensuring support of the applicant’s prior children. Though it is suggested that the statute protects the ability of marriage applicants to meet prior support obligations before new ones are incurred, the statute is both underinclusive (as it does not limit new financial commitments other than those arising out of the contemplated marriage) and overinclusive (since the new spouse may better the applicant’s financial situation). Pp. 388-390.

MR. JUSTICE MARSHALL delivered the opinion of the Court.

At issue in this case is the constitutionality of a Wisconsin statute, Wis. Stat. 245.10 (1), (4), (5) (1973), which provides that members of a certain class of Wisconsin residents may not marry, within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any “Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment.” The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, demonstrates that the children covered by the support order “are not then and are not likely thereafter to become public charges.” No marriage license may lawfully be issued in Wisconsin to a person covered by the statute, except upon court order; any marriage entered into without compliance with 245.10 is declared void; and persons acquiring marriage licenses in violation of the section are subject to criminal penalties. 

I

Appellee Redhail is a Wisconsin resident who, under the terms of 245.10, is unable to enter into a lawful marriage in Wisconsin or elsewhere so long as he maintains his Wisconsin residency. The facts, according to the stipulation filed by the parties in the District Court, are as follows. In January 1972, when appellee was a minor and a high school student, a paternity action was instituted against him in Milwaukee County Court, alleging that he was the father of a baby girl [434 U.S. 374, 378]   born out of wedlock on July 5, 1971. After he appeared and admitted that he was the child’s father, the court entered an order on May 12, 1972, adjudging appellee the father and ordering him to pay $109 per month as support for the child until she reached 18 years of age. From May 1972 until August 1974, appellee was unemployed and indigent, and consequently was unable to make any support payments.

On September 27, 1974, appellee filed an application for a marriage license with appellant Zablocki, the County Clerk of Milwaukee County, and a few days later the application was denied on the sole ground that appellee had not obtained a court order granting him permission to marry, as required by 245.10. Although appellee did not petition a state court thereafter, it is stipulated that he would not have been able to satisfy either of the statutory prerequisites for an order granting permission to marry. First, he had not satisfied his support obligations to his illegitimate child, and as of December 1974 there was an arrearage in excess of $3,700. Second, the child had been a public charge since her birth, receiving benefits under the Aid to Families with Dependent Children program. It is stipulated that the child’s benefit payments were such that she would have been a public charge even if appellee had been current in his support payments.

On December 24, 1974, appellee filed his complaint in the District Court, on behalf of himself and the class of all Wisconsin residents who had been refused a marriage license pursuant to 245.10 (1) by one of the county clerks in Wisconsin. Zablocki was named as the defendant, individually [434 U.S. 374, 379]   and as representative of a class consisting of all county clerks in the State. The complaint alleged, among other things, that appellee and the woman he desired to marry were expecting a child in March 1975 and wished to be lawfully married before that time. The statute was attacked on the grounds that it deprived appellee, and the class he sought to represent, of equal protection and due process rights secured by the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution.

The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U.S. 1 (1967). … The Court’s language on the latter point bears repeating:

    “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
    “Marriage is one of the `basic civil rights of man,’ fundamental to our very existence and survival.” Id., at 12, quoting Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535, 541 

    (1942).

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U.S. 190 (1888), the Court characterized marriage as “the most important relation in life,” id., at 205, and as “the foundation of the family and of society, without which there would be neither civilization nor progress,” id., at 211. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, id., at 399, and in Skinner v. Oklahoma ex rel. Williamson, supra, marriage was described as “fundamental to the very existence and survival of the race,” 316 U.S., at 541 .

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordon,430 U.S. 762, 768 -770, and n. 13 (1977); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-176 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place. 11 

By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. See Califano v. Jobst, ante, p. 47; [434 U.S. 374, 387]   n. 12, infra. The statutory classification at issue here, however, clearly does interfere directly and substantially with the right to marry…

There is evidence that the challenged statute, as originally introduced in the Wisconsin Legislature, was intended merely to establish a mechanism whereby persons with support obligations to children from prior marriages could be counseled before they entered into new marital relationships and incurred further support obligations. 13 Court permission to marry was to be required, but apparently permission was automatically to be granted after counseling was completed. 14 The statute actually enacted, however, does not expressly require or provide for any counseling whatsoever, nor for any automatic granting of permission to marry by the court, 15 and thus it can [434 U.S. 374, 389]   hardly be justified as a means for ensuring counseling of the persons within its coverage. Even assuming that counseling does take place – a fact as to which there is no evidence in the record – this interest obviously cannot support the withholding of court permission to marry once counseling is completed.

With regard to safeguarding the welfare of the out-of-custody children, appellant’s brief does not make clear the connection between the State’s interest and the statute’s requirements. At argument, appellant’s counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to his children. Tr. of Oral Arg. 17-20. This “collection device” rationale cannot justify the statute’s broad infringement on the right to marry.

First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children. More importantly, regardless of the applicant’s ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute’s and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via [434 U.S. 374, 390]   wage assignments, civil contempt proceedings, and criminal penalties. And, if the State believes that parents of children out of their custody should be responsible for ensuring that those children do not become public charges, this interest can be achieved by adjusting the criteria used for determining the amounts to be paid under their support orders.

There is also some suggestion that 245.10 protects the ability of marriage applicants to meet support obligations to prior children by preventing the applicants from incurring new support obligations. But the challenged provisions of 245.10 are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. The statutory classification is substantially overinclusive as well: Given the possibility that the new spouse will actually better the applicant’s financial situation, by contributing income from a job or otherwise, the statute in many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations. And, although it is true that the applicant will incur support obligations to any children born during the contemplated marriage, preventing the marriage may only result in the children being born out of wedlock, as in fact occurred in appellee’s case. Since the support obligation is the same whether the child is born in or out of wedlock, the net result of preventing the marriage is simply more illegitimate children.

The statutory classification created by 245.10 (1), (4), [434 U.S. 374, 391]   (5) thus cannot be justified by the interests advanced in support of it. The judgment of the District Court is, accordingly,

      Affirmed.
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