The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court: Altered States in Constitutional Law
Van Alstyne, William, The William and Mary Bill of Rights Journal
"Marriage" is a term that appears in the most ordinary dictionary,1 but not in the Constitution or in the Bill of Rights.2 So, in contrast with the Constitution's treatment of "the freedom of speech," or the "[freedom] of the press,"3 no provision addresses or establishes "the freedom to marry," or "the right to have a family," or even the right "to have children within marriage." Indeed, for that matter, there are no provisions distinguishing any "rights" for those who do marry from any rights of those who do not. And since even the very word "marriage" does not appear in the Constitution, neither is it given any definitional boundaries constraining either Congress or the states.4
Even so, over the course of two centuries of judicial review, the Supreme Court has considered the status of marriage in many decisions testing the permissible scope of state and federal laws that deal with marriage.5 On the whole, moreover, at least until quite recently, these decisions have treated marriage as a special relationship perhaps more vital and more foundational within our constitutional culture than nearly any other.6 More than a century ago, for example, the Supreme Court described the centrality of marriage in society in the following way: "Upon [the institution of marriage] 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."7 And so, quite naturally, the institution of marriage, and its regulation, have been recurring subjects of constitutional review.
The principal sources of Supreme Court decisions strongly sheltering rights within marriage have been the "due process of law" clauses in the Constitution.8 The earlier of these identically-framed clauses appears in the Fifth Amendment of the Bill of Rights,9 but this clause is binding only on Congress and not on the states.10 The other, enacted in 1 868, appears in the Fourteenth Amendment and expressly does bind the states.11 Together, these clauses have been understood to limit the national government and the state governments from enacting highly intrusive laws infringing on private liberty within marriage.12 They have likewise been applied to provide for the equal protection of husbands and wives within marriage.13 For the greater part of the twentieth century, the pattern of judicial decisions of both kinds - the special protection of marriage and of equality of rights within marriage - tended to be of a common piece. Overall, they strongly sheltered marriage and the mutual interests of married persons in each other and in the new lives j oining them through their children, born ofthat union, conceived within that special union of mutual commitment to one another. A single case decided nearly ninety years ago, affords a suitable example to illustrate the point.14
Following World War I, several states enacted laws forbidding any language instruction other than English to be permitted in any school to any child prior to the eighth grade.15 Ostensibly, these laws were enacted to ensure that the children of first or second generation immigrant families would become fluent in English.16 Rather than taking care merely to insure adequate instruction in English to serve that end, however, these laws outlawing any non-English language classes, whether in private schools or in public schools, were far more sweeping.17 That is, they forbade any language instruction in any other language at all until a child was in the eighth grade regardless of the degree of English literacy a child might already have or, indeed, be able to demonstrate according to such tests, written or oral, as the state might require. The effect of these laws was particularly harsh on large numbers of immigrant families.18 They effectively deprived these families (and, indeed, many other families) of any lawful means whatever to enable their own children even to receive any instruction in any school of the language spoken by their parents at home. …