Zablocki v. Redhail

434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618, 1978 U.S. LEXIS 57

• Court: Supreme Court of the United States
• Decided: January 18, 1978
• Docket: 76-879
• Status: Published

Opinions

Mr. Justice Marshall

delivered the opinion of the Court.

At issue in this case is the constitutionality of a Wisconsin statute, Wis. Stat. §§245.10 (1), (4), (5) (1973), which provides that members of a certain class of Wisconsin residents may not marry, within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any “Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment.” The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, - demonstrates that the children covered by the support order “are not then and are not likely thereafter to become public charges.” No marriage license may lawfully be issued in Wisconsin to a person covered by the statute, except upon court order; any marriage entered into without compliance with § 245.10 is declared void; and persons acquiring marriage licenses in violation of the section are subject to criminal penalties.¹

After being denied a marriage license because of his failure to comply with § 245.10, appellee brought this class action under 42 U. S. C. § 1983, challenging the statute as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and seeking declaratory and injunctive relief. The United States District Court for the Eastern District of Wisconsin held the statute unconstitutional under the Equal Protection Clause and enjoined its enforcement. 418 F. Supp. 1061 (1976). We noted probable jurisdiction, 429 U. S. 1089 (1977), and we now affirm.

I

Appellee Redhail is a Wisconsin resident who, under the terms of § 245.10, is unable to enter into a lawful marriage in Wisconsin or elsewhere so long as he maintains his Wisconsin residency. The facts, according to the stipulation filed by the parties in the District Court, are as follows. In January 1972, when appellee was a minor and a high school student, a paternity action was instituted against him in Milwaukee County Court, alleging that he was the father of a baby girl born out of wedlock on July 5, 1971. After lie appeared and admitted that he was the child's father, the court entered an order on May 12, 1972, adjudging appellee the father and ordering him to pay $109 per month as support for the child until she reached 18 years of age. From May 1972 until August 1974, appellee was unemployed and indigent, and consequently was unable to make any support payments.²

On September 27, 1974, appellee filed an application for a marriage license with appellant Zablocki, the County Clerk of Milwaukee County,³ and a few days later the application was denied on the sole ground that appellee had not obtained a court order granting him permission to marry, as required by § 245.10. Although appellee did not petition a state court thereafter, it is stipulated that he would not have been able to satisfy either of the statutory prerequisites for an order granting permission to marry. First, he had not satisfied his support obligations to his illegitimate child, and as of December 1974 there was an arrearage in excess of $3,700. Second, the child had been a public charge since her birth, receiving benefits under the Aid to Families with Dependent Children program. It is stipulated that the child's benefit payments were such that she would have been a public charge even if appellee had been current in his support payments.

On December 24, 1974, appellee filed his complaint in the District Court, on behalf of himself and the class of all Wisconsin residents who had been refused a marriage license pursuant to § 245.10 (1) by one of the county clerks in Wisconsin. Zablocki was named as the defendant, individually and as representative of a class consisting of all county clerks in the State. The complaint alleged, among other things, that appellee and the woman he desired to marry were expecting a child in March 1975 and wished to be lawfully married before that time. The statute was attacked on the grounds that it deprived appellee, and the class he sought to represent, of equal protection and due process rights secured by the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution.

A three-judge court was convened pursuant to 28 U. S. C. §§ 2281, 2284. Appellee moved for certification of the plaintiff and defendant classes named in his complaint, and by order dated February 20, 1975, the plaintiff class was certified under Fed. Rule Civ. Proc. 23 (b)(2).⁴ After the parties filed the stipulation of facts, and briefs on the merits, oral argument was heard in the District Court on June 23, 1975, with a representative from the Wisconsin Attorney General’s office participating in addition to counsel for the parties.

The three-judge court handed down a unanimous decision on August 31, 1976. The court ruled, first, that it was not required to abstain from decision under the principles set forth in Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), and Younger v. Harris, 401 U. S. 37 (1971), since there was no pending state-court proceeding that could be frustrated by the declaratory and injunctive relief requested:⁵ Second, the court held that the class of all county clerks in Wisconsin was a proper defendant class under Rules 23(a) and (b)(2), and that neither Rule 23 nor due process required prejudgment notice to the members of the plaintiff or the defendant class.⁶

On the merits, the three-judge panel analyzed the challenged statute under the Equal Protection Clause and concluded that “strict scrutiny” was required because the classification created by the statute infringed upon a fundamental right, the right to marry.⁷ The court then proceeded to evaluate the interests advanced by the State to justify the statute, and, finding that the classification was not necessary for the achievement of those interests, the court held the statute invalid and enjoined the county clerks from enforcing it.⁸

Appellant brought this direct appeal pursuant to 28 U. S. C. , claiming that the three-judge court erred in finding §§ 245.10 (1), (4), (5) invalid under the Equal Protection Clause. Appellee defends the lower court’s equal protection holding and, in the alternative, urges affirmance of the District Court’s judgment on the ground that the statute does not satisfy the requirements of substantive due process. We agree with the District Court that the statute violates the Equal Protection Clause.⁹

II

In evaluating §§ 245.10 (1), (4), (5) under the Equal Protection Clause, “we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected.” Memorial Hospital v. Maricopa County, 415 U. S. 250, 253 (1974). Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 312, 314 (1976); see, e. g., San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 17 (1973).

The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U. S. 1 (1967). In that case, an interracial couple who had been convicted of violating Virginia’s miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause'. Id., at 11-12. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. The Court’s language on the latter point bears repeating:

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

“Marriage is one of the 'basic civil rights of man,’ fundamental to our very existence and survival.” Id., at 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942).

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U. S. 190 (1888), the Court characterized marriage as “the most important relation in life,” id., at 205, and as “the foundation of the family and of society, without which there would be neither civilization nor progress,” id., at 211. In Meyer v. Nebraska, 262 U. S. 390 (1923), the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, id., at 399, and in Skinner v. Oklahoma ex rel. Williamson, supra, marriage was described as “fundamental to the very existence and survival of the race,” 316 U. S., at 541.

More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in. the Fourteenth Amendment’s Due Process Clause. In Griswold v. Connecticut, 381 U. S. 479 (1965), the Court observed:

“We deal with a right’ of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Id., at 486.

See also id., at 495 (Goldberg, J., concurring); id., at 502-503 (White, J., concurring in judgment).

Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy. See generally Whalen v. Roe, 429 U. S. 589, 598-600, and nn. 23-26 (1977). For example, last Term in Carey v. Population Services International, 431 U. S. 678 (1977), we declared:

“While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 536, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-465 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Meyer v. Nebraska, [262 U. S. 390, 399 (1923)].’ ” Id., at 684-685, quoting Roe v. Wade, 410 U. S. 113, 152-153 (1973).

See also Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment”); Smith v. Organization of Foster Families, 431 U. S. 816, 842-844 (1977); Moore v. East Cleveland, 431 U. S. 494, 499 (1977); Paul v. Davis, 424 U. S. 693, 713 (1976).¹⁰

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordon, 430 U. S. 762, 768-770, and n. 13 (1977); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175-176 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.¹¹

By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. See Califano v. Jobst, ante, p. 47; n. 12, infra. The statutory classification at issue here, however, clearly does interfere directly and substantially with the right to marry.

Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses. Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public-charges. These persons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute’s requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute’s requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.¹²

Ill

When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. See, e. g., Carey v. Population Services International, 431 U. S., at 686; Memorial Hospital v. Maricopa County, 415 U. S., at 262-263; San Antonio Independent School Dist. v. Rodriguez, 411 U. S., at 16-17; Bullock v. Carter, 405 U. S. 134, 144 (1972). Appellant asserts that two interests are served by the challenged statute: the permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the out-of-custody children is protected. We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained.

There is evidence that the challenged statute, as originally introduced in the Wisconsin Legislature, was intended merely to establish a mechanism whereby persons with support obligations to children from prior marriages could be counseled before they entered into new marital relationships and incurred further support obligations.¹³ Court permission to marry was to be required, but apparently permission was automatically to be granted after counseling was completed.¹⁴ The statute actually enacted, however, does not expressly require or provide for any counseling whatsoever, nor for any automatic granting of permission to marry by the court,¹⁵ and thus it can hardly be justified as a means for ensuring counseling of the persons within its coverage. Even assuming that counseling-does take place — a fact as to which there is no evidence in the record — this interest obviously cannot support the withholding of court permission to marry once counseling is completed.

With regard to safeguarding the welfare of the out-of-custody children, appellant’s brief does not make clear the connection between the State’s interest and the statute’s requirements. At .argument, appellant’s counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to his children. Tr. of Oral Arg. 17-20. This “collection device” rationale cannot justify the statute’s broad infringement on the right to marry.

First, with respect to individuals who are unable to meet the .statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children. More importantly, regardless of the applicant’s ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute’s and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties.¹⁶ And, if the State believes that parents of children out of their custody should be responsible for ensuring that those children do not become public charges, this interest can be achieved by adjusting the criteria used for determining the amounts to be paid under their support orders.

There is also some suggestion that § 245.10 protects the ability of marriage applicants to meet support obligations to prior children by preventing the applicants from incurring new support obligations. But the challenged provisions of § 245.10 are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. The statutory classification is substantially over-inclusive as well: Given the possibility that the new .spouse will actually better the applicant’s financial situation, by contributing income from a job or otherwise, the statute in. many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations. And, although it is true that the applicant will incur support obligations to any children born during the contemplated marriage, preventing the marriage may only result in the children being born out of wedlock, as in fact occurred in appellee’s case. Since the support obligation is the same whether the child is born in or out of wedlock, the net result of preventing the marriage is simply more illegitimate children.

The statutory classification created by §§245.10(1), (4), (5) thus cannot be justified by the interests advanced in support of it. The judgment of the District Court is, accordingly,

Affirmed.

1 Wisconsin Stat. § 245.10 provides in pertinent part:

“(1) No Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment, may marry in this state or elsewhere, without the order of either the court of this state which granted such judgment or support order, or the court having divorce jurisdiction in the county of this state where such minor issue resides or where the marriage license application is made. No marriage license shall be issued to any such person except upon court order. The court, within 5 days after such permission is sought by verified petition in a special proceeding, shall direct a court hearing to be held in the matter to allow said person to submit proof of his compliance with such prior court obligation. No such order shall be granted, or hearing held, unless both parties to the intended marriage appear, and unless the person, agency, institution, welfare department or other entity having the legal or actual custody of such minor issue is given notice of such proceeding by personal service of a copy of the petition at least 5 days prior to the hearing, except that such appearance or notice may be waived by the court upon good cause shown, and, if the minor issue were of a prior marriage, unless a 5-day notice thereof is given to the family court com-' missioner of the county where such permission is sought, who shall attend such hearing, and to the family court commissioner of the court which granted such divorce judgment. If the divorce judgment was granted in a foreign court, service shall be made on the clerk of that court. Upon the hearing, if said person submits such proof and makes a showing that such children are not then and are not likely thereafter to become public charges, the court shall grant such order, a copy of which shall be filed in any prior proceeding ... or divorce action of such person in this state affected thereby; otherwise permission for a license shall be withheld until such proof is submitted and such showing is made, but any court order withholding such permission is an appealable order. Any hearing under this section may be waived by the court if the court is satisfied from an examination of the court records in the case and the family support records in the office of the clerk of court as well as from disclosure by said person of his financial resources that the latter has complied with prior court orders or judgments affecting his minor children, and also has shown that such children are not then and are not likely thereafter to become public charges. No county clerk in this state shall issue such license to any person required to comply with this section unless a certified copy of a court order permitting such marriage is filed with said county clerk.

“ (4) If a Wisconsin resident having such support obligations of a minor, as stated in sub. (1), wishes to marry in another state, he must, prior to such marriage, obtain permission of the court under sub. (1), except that in a hearing ordered or held by the court, the other party to the proposed marriage, if domiciled in another state, need not be present at the hearing. If such other party is not present at the hearing, the judge shall within 5 days send a copy of the order of permission to marry, stating the obligations of support, to such party not present.

“(5) This section shall have extraterritorial effect outside the state; and s. 245.04 (1) and (2) [providing that out-of-state marriages to circumvent Wisconsin law are void] are applicable hereto. Any marriage contracted without compliance with this section, where such compliance is required, shall be void, whether entered into in this state or elsewhere.”

The criminal penalties for violation of § 245.10 are set forth in Wis. Stat. §245.30 (1) (f) (1973). See State v. Mueller, 44 Wis. 2d 387, 171 N. W. 2d 414 (1969) (upholding criminal prosecution for failure to comply with §245.10).

2 The record does not indicate whether appellee obtained employment subsequent to August 1974.

3 Under Wisconsin law, “[m]arriage may be validly solemnized and contracted [within the] state only after a license has been issued therefor,” Wis. Stat. § 245.16 (1973), and (with an exception not relevant here) the license must be obtained from “the county clerk of the county in which one of the parties has resided for at least 30 days immediately prior to making application therefor,” § 245.05.

4 The order defined the plaintiff class as follows:

“All Wisconsin residents who have minor issue not in their custody and who are under an obligation to support such minor issue by any court order or judgment and to whom the county clerk has refused to issue a marriage license without a court order, pursuant to §245.10 (1), Wis. Stats. (1971).”

The order also established a briefing schedule on appellee’s motion for certification of a defendant class. Although appellee thereafter filed a brief in support of the motion, appellant never submitted a brief in opposition.

5 418 F. Supp. 1061, 1064-1065. The possibility that abstention might be required under our decision in Huffman v. Pursue, Ltd., was raised by the District Court, sua sponte, at argument before that court. Appellee subsequently filed a memorandum contending that abstention was not required; appellant did not submit a response. Appellant now argues, on this appeal/ that the District Court failed to consider the “doctrine of federalism” set forth in Younger and Huffman. According to appellant, proper consideration of this doctrine would have led the District Court to require appellee to bring suit first in the state courts, in order to give those courts the initial opportunity to pass on his constitutional attack against § 245.10. We cannot agree.

First, the District Court was correct in finding Huffman and Younger inapplicable, since there was no pending state-court proceeding in which appellee could have challenged the statute. See Wooley v. Maynard, 430 U. S. 705, 710-711 (1977). Second, there are no ambiguities in the statute for the state courts to resolve, and — absent issues of state law that might affect the posture of the federal constitutional claims — this Court has uniformly held that individuals seeking relief under 42 U. S. C. § 1983 need not present their federal constitutional claims in state court before coming to a federal forum. See, e. g., Wisconsin v. Constantineau, 400 U. S. 433, 437-439 (1971); Zwickler v. Koota, 389 U. S. 241, 245-252 (1967). See also Huffman v. Pursue, Ltd., 420 U. S., at 609-610, n. 21.

Appellant also contends on this appeal, for the first time, that the District Court should have abstained out of “regard for the independence of state governments in carrying out their domestic policy.” Brief for Appellant 16, citing Burford v. Sun Oil Co., 319 U. S. 315, 317-318 (1943). Unlike Burford, however, this case does not involve complex issues of state law, resolution of which would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 814-815 (1976). And there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.

6 418 F. Supp., at 1065-1068. Appellant has not appealed the District Court’s finding that the defendant class satisfied the requirements of Rules 23 (a) and (b)(2), the court’s definition of the class to include all county clerks in Wisconsin, or the requirement that appellant send a copy of the judgment to each of the county clerks, and those issues are therefore not before us. Appellant does claim on this appeal that due process required prejudgment notice to the members of the defendant class if the judgment was to be binding on them. As this issue has been framed, however, we cannot perceive appellant’s “personal stake in the outcome,” Baker v. Carr, 369 U. S. 186, 204 (1962), and we therefore hold that appellant lacks standing to raise the claim. Appellant would be bound, regardless of what we concluded as to the judgment’s binding effect on absent members of the defendant class, and appellant has not asserted that he was injured in any way by the maintenance of this suit as a defendant class action. Indeed, appellant never filed a brief in the District Court in opposition to the defendant class, despite being invited to do so, see n. 4, supra, and the notice issue was briefed for the first time on this appeal, after the Wisconsin Attorney General took over as lead counsel for appellant. In these circumstances, the absent class members must be content to assert their due process rights for themselves, through collateral attack or otherwise. See Hansberry v. Lee, 311 U. S. 32 (1940); Advisory Committee Notes on 1966 Amendment to Rule 23, 28 U. S. C. App., p. 7768, citing Restatement of Judgments §86, Comment (h), § 116 (1942). We note, in any event, that in light of our disposition of this case and the recent revision of Wisconsin’s Family Code, see n. 9, infra, the question of binding effect on the absent members may be wholly academic.

7 418 F. Supp., at 1068-1071. The court found an additional justification for applying strict scrutiny in the fact that the statute discriminates on the basis of wealth, absolutely denying individuals the opportunity to marry if they lack sufficient financial resources to make the showing required by the statute. Id., at 1070, citing San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 20 (1973).

8 418 F. Supp., at 1071-1073.

9 Counsel for appellee informed us at oral argument that appellee was married in Illinois some time after argument on the merits in the District Court, but prior to judgment. Tr. of Oral Arg. 23, 30-31. This development in no way moots the issues before us. First, appellee’s individual claim is unaffected, since he is still a Wisconsin resident and the Illinois marriage is consequently void under the provisions of §§245.10 (1), (4), (5). See State v. Mueller, 44 Wis. 2d 387, 171 N. W. 2d 414 (1969) (§245.10 has extraterritorial effect with respect to Wisconsin residents). Second, regardless of the current status of appellee’s individual claim, the dispute over the statute’s constitutionality remains live with respect to members of the class appellee represents, and the Illinois marriage took place well after the class was certified. See Franks v. Bowman Transp, Co., 424 U. S. 747, 752-757 (1976); Sosna v. Iowa, 419 U. S. 393, 397-403 (1975).

After argument in this Court, the Acting Governor of Wisconsin signed into law a comprehensive revision of the State’s marriage laws, effective February 1, 1978. 1977 Wis. Laws, ch. 105, Wis. Legis. Serv. (West 1977). The revision added a new section (§ 245.105) which appears to be a somewhat narrower version of § 245.10. Enactment of this new provision also does not moot our inquiry into the constitutionality of § 245.10. By its terms, the new section “shall be enforced only when the provisions of § 245.10 and utilization of the procedures thereunder are stayed or enjoined by the order of any court.” § 245.105 (8). As we read this somewhat unusual proviso, and as it was explained to us at argument by the representative of the Wisconsin Attorney General, Tr. of Oral Arg. 4^10, the new section is meant only to serve as a stopgap during such time as enforcement of § 245.10 is barred by court order. Were we to vacate the District Court’s injunction on this appeal, § 245.10 would go back into full force and effect; accordingly, the dispute over its validity is quite live. We express no judgment on the constitutionality of the new section.

10 Further support for the fundamental importance of marriage is found in our decisions dealing with rights of access to courts in civil cases. In Boddie v. Connecticut, 401 U. S. 371 (1971), we wrote that “marriage involves interests of basic importance in our society,” id., at 376, and held that filing fees for divorce actions violated the due process rights of indigents unable to pay the fees. Two years later, in United States v. Kras, 409 U. S. 434 (1973), the Court concluded that filing fees in bankruptcy actions did not deprive indigents of due process or equal protection. Boddie was distinguished on several grounds, including the following:

“The denial of access to the judicial forum in Boddie touched directly . . . on the marital relationship and on the associational interests that surround the establishment and dissolution of that relationship. On many occasions we have recognized the fundamental importance of these interests under our Constitution. See, for example, Loving v. Virginia . . . 409 U. S., at 444.

See also id., at 446 (“Bankruptcy is hardly akin to free speech or marriage ...[,] rights ! . . that the Court has come to regard as fundamental”).

11 Wisconsin punishes fornication as a criminal offense:

“Whoever has sexual intercourse with a person not his spouse may be fined not more than $200 or imprisoned not more than 6 months or both.” Wis. Stat. §944.15 (1973).

12 The directness and substantiality of the interference with the freedom to marry distinguish the instant case from Califano v. Jobst, ante, p. 47. In Jobst, we upheld sections of the Social Security Act providing, inter alia, for termination of a dependent child's benefits upon marriage to an individual not entitled to benefits under the Act. As the opinion for the Court expressly noted, the rule terminating benefits upon marriage was not “an attempt to interfere with the individual’s freedom to make a decision as important as marriage.” Ante, at 54. The Social Security provisions placed no direct legal obstacle in the path of persons desiring to get married, and — notwithstanding our Brother Rehnquist’s imaginative recasting of the case, see dissenting opinion, post, at 408 — there was no .evidence that the laws significantly discouraged, let alone made “practically impossible,” any marriages. Indeed, the provisions had not deterred the individual who challenged the statute from getting married, even though, he and his wife were both disabled. See Califano v. Jobst, ante, at 48. See also ante, at 57 n.. 17 (because of availability of other federal benefits, total .payments to the Jobsts after marriage were only $20 per month less than they would have been had Mr. Jobst’s child benefits not been terminated).

13 See Wisconsin Legislative Council Notes, 1959, reprinted following Wis. Stat. Ann. § 245.10 (Supp. 1977-1978); 5 Wisconsin Legislative Council, General Report 68 (1959).

14 See ibid.

15 Although the statute as originally enacted in 1959 did not provide for automatic granting of permission, it did allow the court to grant permission if it found “good cause” for doing so, even in the absence of a showing that support obligations were being met. 1959 Wis. Laws,, ch. 595, § 17. In 1961, the good-cause provision was deleted, and the requirement of a showing that the out-of-custody children are not and will not become public charges was added. 1961 Wis. Laws, ch. 505, § 11.

16 Wisconsin statutory provisions for civil enforcement of support obligations to' children from a prior marriage include §§ 247.232 (wage assignment), 247.265 (same), and 295.03 (civil contempt). Support obligations arising out of paternity actions may be civilly enforced under §§ 52.21 (2) (wage assignment) and 52.40 (civil contempt). See also §52.39. In addition, failure to meet support obligations may result in conviction of the felony offense of abandonment of a minor child, § 52.05, or the misdemeanor of failure to support a minor child, § 52.055.