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Cross CurrentsFamily Law and Policy in the US and England$
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Sanford N. Katz, John Eekelaar, and Mavis MacLean

Print publication date: 2000

Print ISBN-13: 9780198268208

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198268208.001.0001

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

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

(p.256) (p.257) 12 The Constitutionalization of American Family Law: The Case of the Right to Marry
Cross Currents

Jerome A. Barron

Oxford University Press

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

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