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The American Constitutional Law and the Freedom to Marry

  • Public Land Law Review
  • Abbr : KPLLR
  • 2009, 43(3), pp.643-664
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Soon Chul Huh 1

1경남대학교

Accredited

ABSTRACT

It has been said that marriage is not only a foundation to form a family, but also the most fundamental relation to our very existence. However, what is marriage? A law dictionary defines marriage as a legal union of a man and woman as husband and wife. But, in Goodridge v. Dep't of Pub. Health, the court said that it is the exclusive and permanent commitment of the marriage partners to one another as a union of any two persons regardless of their sexes. In the U.S., the institution of marriage is a creature of state law. Two forms of marriage have been authorized: one is civil marriage that is solemnized by a person authorized to perform marriages, the other is a common-law marriage, which is a marriage without formal solemnization. The U.S. Supreme Court cases that purport to recognize a fundamental right to marry do not provide any core definition of the right. Only when the state refuses to let certain people into the state-defined institution, or when the state violates the anti-discrimination principle, does the Court apply constitutional protections. The right to marry is principally a product of three cases. The initial decision is Loving v. Virginia, where the Court struck down a ban on interracial marriage. It stressed that “freedom of choice to marry” may “not be restricted by invidious racial discrimination.” In Zablocki v. Redhail, the Court invoked the Equal Protection Clause to strike down a Wisconsin law forbidding people under child support obligations to remarry unless they obtained a judicial determination. The Court announced 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.” In Turner v. Salfi, the Court added that marriages are often recognized as having spiritual significance--and that “marital status often is a prerequisite for” a number of material benefits, including property rights. In the U.S. some scholars say that they are skeptical of the official institution of marriage and it should be abolished. Meanwhile, the Court has declined to intervene with the realm of domestic relations and also emphasized that it is appropriate for the federal courts to leave domestic relations to the state court. Even if the words of the Article 36 (1) of the Korean Constitution--“both sexes”--should be understood not to permit same-sex marriage as some scholars argue, the legal question whether it is legislatively desirable or not is totally different one. Furthermore, it also should be reviewed whether the institutions such as civil union and domestic relations may be adopted in Korea.

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