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Governmental Regulation of Marriage


See Also:


Terms:


Due process:
A legal right guaranteed by the U.S. Constitution flowing from the Fifth Amendment and applied to the states through the Fourteenth Amendment.  “No person shall . . . be deprived of life, liberty or property, without due process of law.” The aspect of this clause that applies family law protection focuses on deprivation of ones liberty interest—the liberty to plan one's own family relationships.

Procedural due process
A legal right guaranteed by the U.S. Constitution flowing from the Fifth Amendment and applied to the states through the Fourteenth Amendment.  This right guarantees procedural fairness to citizens by entitling them to notice of the proceeding and a hearing when the state or federal government attempts to deny them of a fundamental right.

Substantive due process:
A legal right guaranteed by the U.S. Constitution flowing from the Fifth Amendment and applied to the states through the Fourteenth Amendment. Substantive due process limits governmental action in laws that interfere with a family’s right to control the choices they make day-to-day regarding family life and requires government legislation be fair and reasonable in content and application.

Strict scrutiny test
Before the governmental can make regulations of families’ it must pass the strictest test of “strict scrutiny.” Under this elevated level of review a governmental measure which is found to adversely affect a fundamental right will requires a state to establish that it has a compelling interest to justify the law or statute enacted.


Unlike the system of marriage in English history, in the U.S., marriage was conceived as a civil contract, thereby giving states jurisdiction over marriage. Thus, both federal and state regulations govern family law.

As discussed earlier in this chapter, the U.S. Constitution plays a major part in regulating family life. Specifically, the due process guarantees of the Fifth and Fourteenth Amendments ensure that: “No person shall . . . be deprived of life, liberty or property, without due process of law.” The aspect of this clause that deals with family law protection focuses on deprivation of liberty—the liberty to plan one's own family relationships.

Due process has two prongs: procedural and substantive. The former requires that courts follow certain procedures to ensure that a family’s rights are respected.

EXAMPLE: Ingrid is the custodial parent of her seven-year-old daughter. Ever since her ex-husband left her for a fellow member of their church, she has struggled to make ends meet. At one point she worked as a stripper to put money on the table. After her recent arrest for prostitution, the children’s welfare agency took her daughter away and put her in foster care pending the outcome of her trial. In addition, it threatened to terminate her parental rights, thereby making her daughter eligible for adoption by another family.

Substantive due process limits governmental action vis-à-vis the family’s right to control the choices it makes in its day-to-day family life. Thus, before governmental regulations of families’ decisions pass scrutiny, they must have a close relationship to the advancement of a valid state purpose rather than arbitrarily intrude on families’ lives. Given the seriousness of these decisions, governments are held to the standard of “strict scrutiny” because these family rights are so fundamental. Under this elevated level of review, governmental regulations have to promote a “compelling” state interest before they are deemed valid.

An ancillary right gained with the passage of the Married Women’s Property Acts was the ability to make contracts, which lead to greater outside employment of women. Unfortunately, the workplace was often not very welcoming of women. As such, the need to combat sex discrimination arose in the early 1960s.

In 1964, Congress passed the Civil Rights Act (“CRA”), which included a clause that addressed the rights of women:

It shall be an unlawful employment practice for an employer-

  • to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex or
  • to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's sex . . . .

The case law interpreting this statute is quite extensive and beyond the scope of this course. Nevertheless, there are certain aspects of the CRA that directly impact women’s rights in marriage.

EXAMPLE: Elvira and Brad both applied for the position of supervisor at the local auto plant. Both also have pre-school aged children. The company had an unwritten rule that it did not hire women with young children. Given the unequal treatment of the two candidates based solely on sex, this distinction could possibly be considered a violation of the CRA. In deciding the outcome of this case, the court would have to determine whether the company has a bona fide reason under the statute (i.e., bona fide occupational qualification) for denying Elvira the opportunity to become a supervisor. See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).

Pregnancy is another area that has generated discriminatory reactions from employers. Employers have been known to fire its female employees during pregnancy or while they were out on maternity leave. To combat this treatment, the Pregnancy Discrimination Act was passed in 1978, amending the CRA. In addition, many women (and men) are now entitled to up to 12 weeks of unpaid leave under the federal Family and Medical Leave Act (“FMLA”) for one of the following:

  • To care for a child after birth, adoption or a foster care placement.
  • To care for a spouse, child or parent who has a serious health condition.
  • To care for oneself due to a serious health condition.

To be eligible for FMLA leave, an employee must work for a covered employer for a minimum of twelve months prior to the leave. Employer coverage applies to State, local and Federal agencies and private sector employers who employ 50 or more employees.

In addition to the time off, employees are entitled to restoration of their position after the leave or at the very least an equivalent position, including the comparable benefits, pay and other terms and conditions they enjoyed before the leave. See 5 U.S.C.S. § 6384(a).

EXAMPLE: Patricia worked as an accounting supervisor at a local bakery company. When she told her boss she was pregnant, he got very upset. He did not welcome the interruption in his department due to her pregnancy and subsequent maternity leave. During Patricia’s maternity leave, her boss had a co-worker, Ted, fill in for her. When it was time for Patricia to return, her boss informed her that she was no longer needed since Ted was up to speed at the job. Her boss told her there was no longer any opening for her at the company. Patricia sued. In determining whether Patricia would be entitled to recover her position after her maternity leave, the court would evaluate whether FMLA applied to her company and whether the company violated her rights when it refused to allow her to return to her former job.

Regarding financial affairs, the ability to obtain credit solely in a woman’s name was another prohibition. The problem was particularly acute after divorce. Due to a woman’s lack of a credit history in her name, creditors denied credit entirely. This inequity was resolved with the enactment of the federal Equal Credit Opportunity Act in 1975 (“ECOA”). Specifically, under the ECOA “[i]t shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction on the basis of . . . sex or marital status . . . .” See 15 U.S.C.S. § 1691 (2005).

With these newfound rights, inter alia, married women gained more equal footing to protect their interests. As shown, equality required a combination of case law and statutes to level the playing field (somewhat) between women and men. Now it’s time to explore how women (and men) fare in other aspects of family law.