Loving v.

Virginia
Posted on November 9, 2012 | Constitutional Law | Tags: Constitutional Law Case Brief

FACTS
Plaintiffs were charged with and convicted of inter-racial marriage. The two had gone to another state to
obtain a marriage license and returned to their home state of Virginia afterward. Later on they were
confronted by police at their home. The police found their marriage certificate and used it as evidence
that they had violated the states law by getting married out of state. They both served their time of one
year in prison then moved to Washington DC after release. At trial, the state of Virginia argued that the
law did not violate the equal protection clause because it applied the same penalties to African Americans
and whites. The law itself only applied to marriage between a white person and any person of another
race. Therefore, under the VA law, any minority could marry another minority of a separate class.

ISSUE
Whether a state law that outlaws marriage between races violates the equal protection clause.

HOLDING/ANALYSIS
Yes, the law is invalidated because it violates both the equal protection clause and the due process
clause of the United States constitution. The court decision was unanimous. The court argued that the
right to marriage is a fundamental right of humanity and cannot be denied whatsoever to anyone on the
basis of race, especially on the basis of the married parties race. This freedom resides with the individual
and is protected by the constitution and cannot be violated by state legislatures. The court held that there
could not be any legitimate state interest in proffering the law; and the only reason for it existing in the first
place was to promote white supremacy.
The court also wrote that laws discriminating on the basis of race were subject to the strictest possible
scrutiny. The lowest level rational basis examination does not apply in this case, because the law
strikes at the core of racial discrimination.

Brief Fact Summary. A Wisconsin Statute forced individuals to receive court

permission in order to marry if they have a minor issue not in their custody which
they are obligated to pay support for. Appellant was unable to receive court
permission under the statute and brought suit on behalf of all residents similarly
situated.
Synopsis of Rule of Law. If a statute significantly interferes with the exercise of a
fundamental constitutional right, it must be supported by sufficiently important
state interests and closely tailored to effectuate only those interests. Such interests
are subject to strict scrutiny or critical examination.

Facts. Appellee Redhail was unable to enter into a lawful marriage under a
Wisconsin statute that did not permit a resident to marry without court permission if
he has a minor issue not in his custody which he is obligated to pay support by
court order. The statute allowed court permission only if the marriage applicant
submits proof of compliance with the support obligation and additionally
demonstrates that the children covered by the support order are not then or likely
thereafter to become public charges. In 1972 when appellee was a minor high
school student he was found to be the father of a baby girl born out of wedlock and
ordered to pay monthly support. Appellee was unemployed and indigent until 1974,
and unable to make payments.
In 1974 appellee applied for a marriage certificate with appellant Zablocki, a
county clerk. The application was denied due to appellees failure to obtain the
required court order. It was stipulated that appellee was in arrearage on his
payments and his child had been a public ward since birth, therefore he was unable
to satisfy the requirements for a court order. Appellee filed his complaint on behalf
of himself and all similarly situated Wisconsin residents.
Issue. Is a Wisconsin statute that provides that members of a certain class of
residents cannot marry, within the State or elsewhere, without first obtaining a
court order granting permission to marry constitutional?
Held. The statute is unconstitutional because it significantly interferes with the
exercise of a fundamental right and is not supported by sufficiently important state
interests and is not closely tailored to effectuate only those interests.
The court employs a critical examination of the state interests advanced in support
of the statute because the right to marry is of fundamental importance. Previous
court decisions have confirmed that the right to marry is protected by the Due
Process Clause of the Fourteenth Amendment.
Although reasonable restrictions that do not significantly interfere with the right to
marry may be imposed, the present statute absolutely prevents some in the
protected class from obtaining the required order, and places sufficient burdens and
significant intrusions on others.
Appellant claims that the statute supports the States interest in counseling the
applicant as to the need of fulfilling his prior support obligations and protects the
welfare of the out-of-custody children. The first claim is faulty because even if

counseling is provided there would be no interest in continuing to withhold

permission to marry after counseling is completed. The second is faulty for two
reasons. First, if the individual is unable to meet payments, the statute simply
prevents marriage without providing any money to the minor children. Second, the
State has numerous other means for extracting the payments.
There is also suggestion that the statute prevents applicants from incurring new
support obligations. However, this is underinclusive because it limits only the new
financial commitments arising out of a marriage and overinclusive because in many
cases the income from the new spouse may increase the applicants ability to pay.
The statute may only result in more children being born out of wedlock.
Concurrence.
Justice Stewart. The majoritys reliance on the Equal Protection Clause is misplaced
because it is intended to deal only with invidiously discriminatory classifications.
The Due Process Clause protects the liberty right to marriage, and protection of the
States interests must fall short of not permitting poor people to marry.
Justice Stevens. The Wisconsin Legislature incorrectly assumed that (a) only fathers
would be affected by the legislation and (b) they would never marry employed
women. The Statute cannot withstand scrutiny under the Equal Protection Clause of
the Fourteenth Amendment.

Discussion. The majority finds the statute to violate constitutional protections under
both the Due Process and Equal Protection Clauses. The Concurrences appear to
differ mainly on which of these two clauses is more applicable.

Graham v. Graham
33 F.Supp. 936 (E.D. Mich. 1940)
Facts:

This is a suit by a man against his former wife upon the following written agreement by the
parties:
For valuable consideration Margrethe Graham hereby agrees to pay to Sidney

Graham the sum of Three Hundred ($300.00) Dollars per month each and every month hereafter
until the parties hereto no longer desire this arrangement to continue.
Issue:
Whether an agreement for the wife to provide support for the husband is valid.
Holding:
No. Against public policy.
Reasoning:

Even if the contract is otherwise within the contractual power of the parties it is void because
it contravenes public policy.

While there appears to be no Michigan decision directly in point, the principle is well stated
in the Restatement of the Law of Contracts:

A bargain between married persons or persons contemplating marriage to change

the essential incidents of marriage is illegal.

Here, as a result of the marriage contract, the court found that a husband has a duty to
support and live with his wife.

Basically, this case said that you cant contract around the public policy of requiring the
husband to support the wife.

Prof: This case about gender roles is probably not good law.
Rule: A bargain between married persons or persons contemplating marriage to change the
essential incidents of marriage is illegal.

Dunn vs. Palermo

APPELLANTS: Winfield Dunn, et al.
APPELLEE: Rosary Palermo
FACTS
Rosary Palermo, a Nashville lawyer, married Denty Cheatham, also a Nashville
lawyer. She has continued to use and enjoy her maiden name, Palermo,
professionally, socially and for all purposes. Subsequent to her marriage, she lodged
with the Registrar a change of address form listing her name as Palermo. She was
advised that she was required to register anew under the surname of her husband,
or have her name purged from the registration records. Upon her refusal to so
register, her name was purged from the registration list. Thus this action, wherein
appellee seeks a declaratory judgment declaring that the defendants interpretation
of Sec. 2-206, is erroneous, or in the alternative that this statute be declared
violative of the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, and of the Nineteenth Amendment to the Constitution of the United
States.
ISSUES
WON it is mandatory for a married woman to assume the name of her husband
repute
RULING
The Court ruled in favour of the appellee.
RATIO DECIDENDI
There is no constitutional question that needs to be answered as regards the Texas
statute as it does not mandate any change of name by a woman upon marriage. It
merely recognizes the prevalence of the virtually universal custom under which a
woman normally adopts the surname of her husband. We hold that in this
jurisdiction a woman, upon marriage, has a freedom of choice; she may elect to
retain her own surname or she may adopt the surname of her husband. So long as a
persons name remains constant and consistent, and unless and until changed in
the prescribed manner, and absent any fraudulent or legally impermissible intent,
the State has no legitimate concern.

In re Santiago (1940)
In Re Atty. Roque Santiago
June 21, 1940
Original Action in the Supreme Court. Malpractice.
Facts:
In this administrative case, the Solicitor General charged the respondent Atty.
Roque Santiago with malpractice and prayed that disciplinary action be taken
against him.
The respondent gave legal advice to one Ernesto Baniquit who was living separately
from his wife for some nine consecutive years and seeking to contract a second
marriage. The respondent assured Baniquit that he could secure a separation from
his wife and marry again. The lawyer prepared a document (Exhibit A) stating that
the contracting parties, husband and wife, were authorized to marry again and at
the same time giving the authorization to renounce or waive each members right
against the party marrying.
The notary let the husband and wife execute and acknowledge the document
and declared that they were again single and as such could contract another
marriage. Relying on this document, Baniquit contracted a second marriage.
The respondent, upon realizing his mistake, sent for the parties and let them sign
the deed of cancellation (Exhibit C) a month later but after the second marriage of
Baniquit.
Issue:
1. Did the lawyer commit malpractice in his acts regarding the dispensation of such
advice and preparation of document?
2. Is the document regarding separation (Exhibit A) valid?
Held:
1. Yes. The advice given by the respondent and his preparation and
acknowledgment by of the contract constitute malpractice which justifies
disbarment from the practice of law.
2. No. Marriage separation should have should be sanctioned in the proper court
and before the separation (see Selanova). Apart from this, the document subverts
the vital foundation of the family, marriage, and is contrary to law, morals and
public policy.
Decision:
Respondent suspended from practice of law for one year.
Dicta:
A.
As a response to Baniquits question, Santiago remarked that he would tear
the diploma off the wall if the document did not turn out to be valid.
B.
Santiago was ignorant of the applicable provision of the law or carelessly
negligent in giving legal advice.
C.
The admission to the practice of law dependent on a lawyers remaining as a
fit-and-safe person to society. Once he becomes unsafe or unfit to be entrusted with
obligations, his professional privilege should be terminated.

Selanova v Mendoza (1975)

Selanova v Mendoza
May 19,1975
Administrative Complaint in the Supreme Court. Gross Ignorance of the Law.
Facts:
Saturino Selanova charged Judge Alejandro Mendoza with gross ignorance of
the law for preparing and ratifying a document (November 21, 1972) extrajudicially
liquidating the conjugal partnership of the complainant and his wife, Avelina Ceniza.
The conditions of the liquidation were
1. Either spouse would withdraw the complaint for adultery or concubinage which
each had filed against the other and
2. Waiver of the right to prosecute each other for whatever acts of infidelity either
one would commit against the other
In his judgment, respondent relied on Par. 4, Art 191 of the old Civil Code that
states:
the husband and wife may agree upon the dissolution of the conjugal partnership
during the marriage, subject to judicial approval.
While the judge claimed that he asked the CFI of Negros (where the couple
resided) for judicial approval, the Judicial Consultant confirmed that there was no
affirmation from the same court. He still ratified the document.
Issue:
WON the extrajudicial dissolution of the conjugal partnership without judicial
approval is void.
Held:
Yes, it is void.
Precedents (Quintana vs. Lerma, De Luna vs. Linatoc, De La Rosa vs. Barruga)
Under Art. 221 of the Civil Code, the following shall be void:
1. Any contract for personal separation between husband and wife;
2. Every extrajudicial agreement during marriage, for the dissolution of the conjugal
partnership of gains or of the absolute community property between husband and
wife.
Moreover, while adultery and concubinage are private crimes, they are crimes
punishable by the RPC, and a contract legalizing their commission is contrary to
law, morals and public order, and as a consequence not judicially recognizable.
Decision:
Respondent severely censured.
Dicta:
A. Respondent Judge claimed that prohibition of the extrajudicial liquidation of the
conjugal partnership during the marriage made article 191 of the Civil Code
nugatory. He cited Lacson vs. San Jose-Lacson case to show that subsequent
approval of the court can render the marriage dissolved.
The SC argued that the judicial sanction should be secured before the separation.
B. Disciplinary action had been taken against notaries who authenticated
agreements for the personal separation of spouses wherein either spouse was
permitted to commit acts of infidelity.

For instance, in Panganiban vs. Borromeo, the notary was rebuked for authorizing a
document that permitted both spouses to take in concubines without opposition
from either spouse.
In Biton vs. Momongon, a document entitled Legal Separation was executed by a
notary. The husband and wife were separated mutually and voluntarily, renouncing
their rights and obligations in the process, and given the authorization to remarry
while not being witnesses against one another. The lawyer was also rebuked.
In In re Santiago, a lawyer/ respondent prepared a document that gave a married
couple the authorization to marry again while giving them assurance of
renouncement of rights one would have against the other. He was suspended from
practice.
C. The judge was truly unaware of the legal prohibition in contracts for the personal
separation of spouses.

Jones v. Hallahan,
Nov 9, 1973
Appeal from a judgment of the Jefferson County Court
Court of Appeals of Kentucky
Facts:
Marjorie Jones and her partner are female appellants who tried to acquire a license
to marry; this was denied to them by the Jefferson Circuit Court. As a result, they
appeal from this judgment at the Court Appeals.
Issue:
WON two persons of the same sex can enter marriage.
Held:
No, They can not.
Kentucky statutes do not have a definition of marriage. The Court of Apeals turned
to common usage of the term and found marriage to be defined the Websters New
international Dictionary as:
A state of being married, or being united to a person of persons of the opposite
sex as husband and wife ; also, the mutual relation of husband and wife; wedlock;
abstractly the institution whereby men and women are joined in a special kind of
social and legal dependence, for the purpose of founding and maintaining a family.
In the absence of a specific provision in Kentucky statutes that prohibited marriage
between persons of the same sex or whether they issue a license for same sex
couples who want to get married, the Court of Appeals turned to customs and
concluded that marriage has been defined and understood through time as a union
between a man and a woman only.
As a result, appellants cannot avail for themselves of a license to marry
because the status they are trying to enter is a nullity.
Moreover, the right to marry of two persons of the same sex is not
constitutionally guaranteed and cannot be invoked in connection with religious
freedom. The latter is concomitant with the constitution being superior to professed
doctrines and the prevention a citizen becoming a law unto himself.
Decision:
The judgment of the Circuit Court is affirmed.
Dicta:
A.
Even if the appellants concealed the fact that they were of the same sex and
successfully given a license, the resulting relationship (owing to the definition)
would not be a marriage.
B.
No constitutionality issue because there is no Consti sanction on the right of
marriage between persons of the same sex.
C.
In essence, the relationship proposed by the appellants doesnt authorize
issuance of marriage license because what they propose is not a marriage.
D.
Case of first impression in Kentucky- Baker vs. Nelson dismissed for want of a
substantial federal question.
E.
Refusal to issue a license not a punishment
F.
Court of Appeals not presented with an authority to subvert a permanent
union between a man and a woman.