Amdt5.7.5 Marriage and Substantive Due Process

In a series of Fourteenth Amendment due process and equal protection cases, the Supreme Court has identified the right to marry as a “fundamental” interest that necessitates “critical examination” of governmental restrictions that “interfere directly and substantially” with the right.1 However, the Court has rejected some Fifth Amendment Due Process Clause challenges to federal laws that regulate the incidents of, or prerequisites for, marriage, determining that such laws were not entitled to rigorous scrutiny.2 For example, in Califano v. Jobst,3 a unanimous Court sustained a Social Security Act provision that revoked “disabled dependents’ benefits” of any person who married unless that person married someone who was also entitled to receive disabled dependents’ benefits.4 Plaintiff, a recipient of such benefits, married another person with a disability who was not qualified for the benefits, and the plaintiff’s benefits were terminated.5 The plaintiff alleged that distinguishing between classes of “persons who married eligible persons” and “persons who married ineligible persons” infringed upon his right to marry in violation of the equal protection component of the Fifth Amendment’s Due Process Clause.6

The Court rejected the plaintiff’s argument, finding that benefit entitlement was not based upon need but rather upon actual dependency upon the insured wage earner; marriage, Congress could have assumed, generally terminates the dependency upon a parent-wage earner.7 Therefore, Congress could, as an administrative convenience, designate marriage as the benefits’ terminating point, except when both marriage partners were receiving benefits, in order to lessen hardship and recognize that dependency was likely to continue.8 The marriage rule was therefore not to be strictly scrutinized or invalidated “simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby.” 9

E.g., Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia, 388 U. S. 1 (1967)). See also, e.g., Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (collecting cases). back
434 U.S. at 383–87. back
434 U.S. 47 (1977). back
Id. at 48–52. back
Id. back
Id. at 53–58. For additional information on the Supreme Court’s interpretations of the equal protection component of the Fifth Amendment’s Due Process Clause, see Amdt5.7.3 Equal Protection. back
Califano, 434 U.S. at 53–58. back
Id. back
Id. at 54. See also Bowen v. Owens, 476 U.S. 340, 341, 350 (1986) (Social Security Act provision that authorized payment of survivor’s benefits to a “widowed spouse who remarried after age 60, but not to a similarly situated divorced widowed spouse” does not deny equal protection); Mathews v. De Castro, 429 U.S. 181 (1976) (Social Security Act provision providing benefits to a married woman under 62 with dependent children in her care whose husband retires or becomes disabled but denying such benefits to a divorced woman under 62 with dependents represents Congress’s rational judgment about the likely dependency of married but not divorced women and does not deny equal protection); Califano v. Boles, 443 U.S. 282 (1979) (limitation of certain Social Security benefits to widows and divorced wives of wage earners does not deprive mother of a child born out of wedlock who was never married to wage earner of equal protection). back