Chapter

The Constitutionalization of American Family Law: The Case of the Right to Marry

Jerome A. Barron

in Cross Currents

Published in print December 2000 | ISBN: 9780198268208
Published online March 2012 | e-ISBN: 9780191683442 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198268208.003.0012
The Constitutionalization of American Family Law: The Case of the Right to Marry

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Under the U.S. Constitution, the freedom to marry, or not marry, a person of another race resides in the individual and cannot be infringed by the State. Chief Justice Earl Warren protected the marital relationship from state infringement by declaring that the individual had a constitutional right to marry free from invidious racial classifications. The constitutional cloak of protection which the Supreme Court extended to the marital relationship had a spillover in the protection of individual rights. A doctrinal bridge from the autonomy and sanctity of the marital relationship to a similar status for individual autonomy and the relationship of unmarried persons was soon constructed. This chapter discusses the equal protection clause of the Fourteenth Amendment and its role in the protection of unconventional relationships in family law. It examines whether the right to marry includes the right to same-sex marriage and cites several court cases and decisions to highlight the constitutionalisation of family law in the United States.

Keywords: United States; Supreme Court; family law; right to marry; marital relationships; equal protection clause; Fourteenth Amendment

Chapter.  11759 words. 

Subjects: Family Law

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