Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment

Article excerpt

Q: What does your marriage mean to you?

A: Well, we're both on the same level, I helps him and he helps me.

A: I wanted to settle down. I wanted to prove that I could maintain a home and also rear children. I didn't see why I couldn't just because I had been an inpatient. A: I'd probably be lonely without a man.

A: I think Ern's my best friend, though he's more than that to me, more than a best friend. (1)

Although the four individuals who responded to the interviewer's question value marriage and demonstrate an understanding of the responsibilities that come with it, each would be prohibited from marrying in thirty-three states because she is a person with mental retardation. Furthermore, in eleven of the seventeen remaining states, she would still face the possibility that her marriage would be dissolved because of her "incompetence" or "incapacity."

Over the past few decades, there have been significant changes in society's perception of disability as Congress and state legislatures have actively encouraged the "normalization" of people with disabilities. But the reform movement has had little effect on the right of the people with mental retardation to marry. From 1978 to 1997, only five states repealed their statutes prohibiting marriages where either of the parties were a person with mental retardation. (2) The laws that remain continue to refer to people with mental retardation with anachronistic and pejorative terms such as "idiots," (3) "imbeciles," (4) "mentally incompetent," (5) or persons of "unsound mind." (6)

This article will explore the current status of laws restricting people with mental retardation from marrying. While efforts at reform were initiated in the 1970's, little progress has been made and few of the prohibitions have been repealed. I will survey the common justifications for these restrictions and evaluate their validity while suggesting several potential avenues for reform.

I. Current Status of State Marriage Laws

A survey conducted in 1978 found that forty states prohibited people with mental retardation from marrying. (7) As of 1997, thirty-three states still had laws that limited or restricted their right to marry. But marriage statutes have not remained completely static. A substantial number of statutes employ more modern terminology, and some laws have been repealed. A comparison of statutes enforced in the 1970's and those enforced today reveals some progress but also indicates much needed amendment.

A. Marriage Prohibitions

During the 1970's, laws preventing people with mental retardation from marrying reflected language that survived from the turn of the century. In California, for example, "imbeciles" and "idiots" were not permitted to marry. (8) In Massachusetts, an "insane person, idiot, or feeble-minded person under commitment" was denied the right. (9) In Minnesota the ban applied to "mental deficients." (10) In Maine, no "mentally ill, feeble-minded person, or idiot" was capable of contracting marriage, (11) while Delaware extended the prohibition to "a person of any degree of unsoundness of mind." (12)

Critics of these statutes argued that classifications such as "idiot" or "lunatic" seemed to include all degrees of mental incapacity. They made no distinction between people with mental retardation who were capable of independent living and regular employment and those who required constant supervision in an institution. There is now widespread agreement that people with mental retardation can be divided into four different broad categories--mildly, moderately, severely, and profoundly retarded. (13) The difference between a person with mild retardation and profound retardation is roughly equivalent to the difference in cognitive development between a twelve-year-old and a two-year-old. (14) The differences within each group may be as much as four intellectual years. People with mental retardation are a diverse group, but the laws in 1978 did not take their diversity into account. …