Opinion of The Court
When federal suits proceed in three-judge courts, 28 U.S.C. § 1253 allows parties to appeal directly to the Supreme Court. Accordingly, the Supreme Court noted probable jurisdiction, 429 U.S. 1089 (1977). The case was argued early in the October term of 1977, and the judgment was issued in January 1978.
Justice Marshall wrote for the majority in a 5-3-1 court holding. Affirming the judgment of the District Court, Marshall concurred with the District Court's reading of marriage being a fundamental right, relying on Loving v. Virginia (1967) and Griswold v. Connecticut (1965). Marshall, however, diverged from the District Court's analysis by refusing to apply strict scrutiny. Instead, he determined if Wisconsin's law was "supported by sufficiently important state interests and is closely tailored to effectuate only those interests". Marshall's standard is similar to strict scrutiny as his "closely tailored" is similar to the strict scrutiny standard of requiring a statute to be narrowly tailored to the interest, but it requires only an "important state interest", which is akin to intermediate scrutiny.
Applying this standard, Marshall examined the same two justifications that the District Court confronted—child welfare and counseling noncustodial parents about their obligations. These justifications are defeated because as Marshall explained, Wisconsin could find other ways to achieve the interest without resorting to infringement of a fundamental right, and that the latter reason is defective because it fails to achieve the objectives it sets out to meet (which is one of the necessities of being narrowly tailored). Accordingly Marshall affirmed the District Court by focusing the lack of connection and efficacy of the measures Wisconsin advances, rather than confronting the importance of Wisconsin's interests.
Read more about this topic: Zablocki V. Redhail
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