Jones v. Perry

United States District Court for the Eastern District of Kentucky · 2016 · Family Law

Family LawMarriageFundamental right to marryPrisonersmarriage licensein-person requirementdue processfundamental right to marry

Facts

Jones sought a marriage license from Shelby County Clerk Sue Carole Perry so he could marry Sauer, who was imprisoned at the Kentucky Correctional Institution for Women and could not travel to the clerk's office. Perry refused, stating that her office interpreted Kentucky law to require both parties to be physically present to obtain a marriage license. The warden stated she had no objection to the marriage but that the prison would not transport inmates to the clerk's office for this purpose. Jones challenged the clerk's blanket in-person requirement as violating his fundamental right to marry.

Issue

Whether a county clerk's policy requiring both marriage applicants to appear in person at the clerk's office, when applied to a person whose incarcerated fiancée cannot physically appear, unconstitutionally burdens the fundamental right to marry. Also, if so, whether permanent injunctive relief is warranted.

Rule

When a law or policy places a direct and substantial burden on the fundamental right to marry, it is subject to strict scrutiny and cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. A burden is direct and substantial when a large portion of those affected are absolutely or largely prevented from marrying, or from marrying a large portion of the otherwise eligible population.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Dayton, Ohio, Mason Reed applies for a marriage license to marry Lena Ortiz, who is confined to a rehabilitation hospital after a spinal injury and cannot safely travel. The Montgomery County clerk has an office policy requiring both applicants to appear in person and refuses any alternative method, even though hospital staff would verify Lena’s identity and signature.

If Mason brings a due process challenge to the clerk’s policy as applied, which is the strongest argument for applying strict scrutiny?

Explanation. Strict scrutiny applies when a law or policy places a direct and substantial burden on the fundamental right to marry. Under the majority opinion, that occurs when affected persons are absolutely or largely prevented from marrying, or from marrying a large portion of the otherwise eligible population. Here, the in-person rule completely blocks marriage to Lena and similarly affects others unable to travel, so the burden is direct and substantial. (Derived from Jones v. Perry (n.d.).)