Zablocki v. Redhail – Oral Argument – October 04, 1977

Media for Zablocki v. Redhail

Audio Transcription for Opinion Announcement – January 18, 1978 in Zablocki v. Redhail

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Warren E. Burger:

We will hear arguments next in 76-879, Zablocki against Redhail.

Mr. Johnson, I think you may proceed when you are ready.

Ward L. Johnson, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court.

This a direct appeal from the District Court for the Eastern District of Wisconsin, which declared a Wisconsin State Statute imposing a marriage, certain marriage requirement unconstitutional.

The facts in this case are not in dispute.

The named plaintiff Redhail, six years ago approximately fathered a baby girl out of wedlock.

At that time he was in high school.

Two years subsequent he applied for permission to marry to the county clerk of Milwaukee county of the State of Wisconsin, because of a marriage requirement, the clerk denied him a license.

The requirement that was the basis for the denial by the county clerk was that a person who has minor children, not in his custody to whom he has an obligation to support must get permission from a Court to marry.

In Mr. Redhail’s case he had never been married.

We suspect the bulk of the cases arising where there has been — where there is a requirement to get a Court’s permission to marry are those cases involving people who have been divorced, who have been married before.

At this point Mr. Redhail filed a complaint with the District Court for the eastern district of Wisconsin petitioning the Court to declare the Statute unconstitutional because it infringed or impinged upon his Constitutional right to marry.

Mr. Attorney General, is the Statute still operative?

Ward L. Johnson, Jr.:

Yes it is Your Honor.

What about this new Legislation?

Ward L. Johnson, Jr.:

Assembly Bill 100 was passed by both Houses last Friday, it is now on the Governor’s desk for signature.

Well if he signs it, it becomes law?

Ward L. Johnson, Jr.:

Yes.

Then what happens to this case?

Ward L. Johnson, Jr.:

Nothing.

The legislature has preserved the Statute in question here 245.10 intact, of course its operation has been suspended by the injunction of the Three-Judge Court.

You mean the new legislation does not affect the Statute before us?

Ward L. Johnson, Jr.:

That is correct.

In our belief it does not.

Let me explain further Justice Brennan.

Does Mr. Redhail still want to marry the girl?

Ward L. Johnson, Jr.:

We do not know whether his ardor has cooled or not.

She has not married in the mean time?

Ward L. Johnson, Jr.:

He has not applied for a license.

He did not apply for a license up to the time of the appeal to this Court.

Is there is something in the record that indicates he has had a second child?

Ward L. Johnson, Jr.:

No there is not.

You are going to tell me Mr. Attorney General —

Ward L. Johnson, Jr.:

Yes, Assembly Bill 100 which is now before the Governor for signature, retains the present Statute intact.

Its operation is suspended, when there is any injunction in joining the enforcement procedures under 245.10.

Has it been raised in this case?

Ward L. Johnson, Jr.:

It was — it is tailor-made legislation to accommodate this appeal.

If this Court.

Well as I understand if that Statute becomes, when the Governor signs it, that automatically since there is an outstanding injunction here, suspends the operation of the Statute we have before us?

Ward L. Johnson, Jr.:

As long as there is an injunction pending restraining the enforcement of that Statute an another Statute comes into play that slightly modifies the Statute under question.

Warren E. Burger:

Let me approach you from the other side.

If the Statute which is now on the Governor’s desk had been in effect at the time this case arose, would there be any case?

That is what I think we are trying to prove that.

Ward L. Johnson, Jr.:

I believe because of the accommodation in the new Statute to give the Court greater discretion, in terms of people who have never been married before that the Statute — that there would be no — that Mr. Redhail would not have been a suitable representative, plaintiff.

Warren E. Burger:

But he still would have had to seek the approval of the Court?

If the new Statute had been in effect, this new Statute we are talking about it, had been in effect then, he would still have to goto the Court, would he?

Ward L. Johnson, Jr.:

Not Mr. Redhail.

Warren E. Burger:

Well then we come to what, we have been trying to get at. Is there a case left here, if the new Statute is signed by the Governor tomorrow or the next day?

Ward L. Johnson, Jr.:

Yes Mr. Chief Justice in that, that Statute is only operative when there is a restraining order against the enforcement of the present Statute —

Thurgood Marshall:

And there is a restraining order.

Ward L. Johnson, Jr.:

By the Three-Judge Court, District Court for the Eastern District of Wisconsin, yes —

Well then, the new Statute becomes operative which means Mr. Redhail then can get married without applying to a Court for permission to get married.

Ward L. Johnson, Jr.:

Mr. Redhail could have gotten married as soon as the Court issued its injunction.

But if this Court were to reverse the judgment of the District Court, then the new Statute would be inoperative.

Ward L. Johnson, Jr.:

That is correct, that is correct.

You are talking about the sub-section 8 on page 4 of this Supplemental Memorandum of the Appellees, is the provision of the Statute to which your are referring I think.

Ward L. Johnson, Jr.:

Yes.

Thurgood Marshall:

I do not understand why this case has to moved now?

All he has to do is to apply for a marriage license.

Ward L. Johnson, Jr.:

He could have applied for a marriage license under the restraining order.

Ward L. Johnson, Jr.:

We are restrained now from enforcing 245.10.

Thurgood Marshall:

He could have been married and divorced and remarried by now could he not?

Ward L. Johnson, Jr.:

Because of the restraining order issued by the District Court, yes.

Thurgood Marshall:

What do we have, what is he complaining about now?

Ward L. Johnson, Jr.:

We have a class action that embraces all people.

Thurgood Marshall:

So can all of them, register now?

Ward L. Johnson, Jr.:

They all could because of the restraining order under the Statute, that might become operative, they would have to — if they have been divorced they would have to go to a Court for permission to remarry.

What is the Statute kind of a second line of defense to the State?

Ward L. Johnson, Jr.:

Yes, the legislature wanted to keep the Statute that is now on appeal here, the decision regarding the Statute intact.

If possible.

Ward L. Johnson, Jr.:

In the mean time, if possible, in the mean time they have enacted this interim Statute.

If this Court affirms the restraining order of the Three-Judge Court, the new Statute will be in effect and for all practical purposes the present Statute is dead.

But should this Court lift the restraining order of the Three-Judge Court, the Statute that we are talking about immediately springs back into life.

In other words if we reverse and sustain the Constitutionality of the old Statute, the new Statute then becomes inoperative.

Ward L. Johnson, Jr.:

That is correct and the old Statute springs —

So we have to got to decide the cases is what you are telling?

Ward L. Johnson, Jr.:

Well I am suggesting that it is not moot that the legislature —

I thought you would agreed it would [Laughter]

Mr Johnson let me go back to question, you indicated there was nothing on the record that implied they had a second child.

In the plaintiff or in the complaint, it is alleged that he was adjudged to be the father of a baby girl born in 1970 and I also read plaintiff desires to marry he and the woman he intends to marry are expecting a child to be born to them in early March 1975.

My question is was that child ever born?

Ward L. Johnson, Jr.:

I do not know.

So, Mr. Redhail filed a complaint with the District Court and at this point I would point out that he did not go to a judge to seek permission to remarry and counsel for the plaintiff have made a great point of a fact that the statute permits a judge to grant permission when he finds that the child of the non-custodial parent is a public charge or likely to become a public charge.

Mr. Redhail felt that apparently that he could never meet the test required by or likely to become a public charge.

This phrase has been construed by Wisconsin Court.

If construed very narrowly I would suggest that it could be acquainted with a settling of accounts up-to-date.

It is on the basis of this that we have suggested perhaps the District Court might have abstained as suggested in Reetz versus Bozanich and subsequent cases under that doctrine.

Now the Three-Judge Court decided that this should be a class action carefully noting in their decision that we have two classes really of plaintiffs.

One the named plaintiff who had never been married before and the other category would be people who had been married before and were divorced.

They also found and certified as a class all of the county clerks of the State of Wisconsin.

Ward L. Johnson, Jr.:

We have 72 County clerks, the class is very easily identifiable.

We objected an oral argument as noted in the Court’s decision to certifying such a class without notification to the 71 other county clerks.

Mr Johnson could I go back one point that — you said that the reason that perhaps the Court could have abstained was that the likely to become a public charge language might or might not apply, but is not the child now a public charge?

Did not the District Court find that?

Ward L. Johnson, Jr.:

There was no determination on this particular case as whether the child was a public charge, but the child was an AFDC recipient and there is no question that Mr. Redhail would not have obtained judicial permission to remarry because of the AFDC benefits being extended to —

Then he would not have any occasion to worry about the likely to become a public charge language?

Ward L. Johnson, Jr.:

I do not know we are speculating about the future but —

The matter as to this particular litigant.

We know that he could not have gotten the approval.

Ward L. Johnson, Jr.:

Not without paying up the arrearages —

But even if he payed the arrearage the child would still be a public charge.

Is not that true?

As long as she is receiving a $109 a month, from AFDC.

I just want to be sure I understand your argue.

Ward L. Johnson, Jr.:

Okay, but it is possible that had he paid up his arrearages and showed his ability to meet the support order, that he would have secured judicial permission to marry —

Even though the child was still on AFDC?

Ward L. Johnson, Jr.:

If he was on AFDC, no.

Alright and she is on AFDC.

Ward L. Johnson, Jr.:

She was at the time.

Warren E. Burger:

But presumably if he went into Court and showed that he had a job making $900 a month and paid up the arrearages and the child was off of welfare, then you suggest the permission would have been granted?

Ward L. Johnson, Jr.:

I think so.

Harry A. Blackmun:

Does it make the difference under your statute whether the child is in the father’s custody?

Ward L. Johnson, Jr.:

Yes it is the —

Harry A. Blackmun:

Why?

Ward L. Johnson, Jr.:

The statute says so, the rationale I suppose Justice Blackmum being that the custodial parent already has a burden of the care and has the right to expect contribution from the non-custodial parent.

Harry A. Blackmun:

I know the child maybe on welfare, even when she is in the father’s custody, could not she?

Ward L. Johnson, Jr.:

Sure.

We are not suggesting that the law is absolutely perfect and there are no gaps, loopholes, whatever you want to call them.

We do the best we can in terms of a standard for marriage requirements.

Harry A. Blackmun:

Well it certainly is not perfect it did.

Harry A. Blackmun:

I suppose there is as much risk to the State of Wisconsin for a — to allow a marriage of a childless indigent there is to one who has a child.

The child indigent introduced to.

Ward L. Johnson, Jr.:

Well.

Lets look at —

Harry A. Blackmun:

Presumably

Ward L. Johnson, Jr.:

Presumably, but at least here we have a record to go on.

Whereas we do not have an case —

That is why I was trying to help you out wondering whether there was a second one that he spawned.

Ward L. Johnson, Jr.:

We do not know.

Thurgood Marshall:

Would not a judge — in this case if there is another child about to be born illegitimately and this man wants to marry the girl, in order to give that child meaning, the judge would not give him that permission?

Ward L. Johnson, Jr.:

I do not know.

If I were to predict.

Yeah.

Ward L. Johnson, Jr.:

I would say that the judge would probably stick by the statute and refuse.

But that is just my prediction —

So the State of Wisconsin public policy is, it is better to have two illegitimate children than one.

Ward L. Johnson, Jr.:

The policy is that we are not going to condone by a piece of paper called a marriage license.

You do not condone it, you will compel it.

Ward L. Johnson, Jr.:

So, that is one of the weaknesses of the Statute.

But there is something that could be said on the other side too and I guess that is why I am here.

Alright the Three-Judge Court then certified a class action for all of the named defendants, at oral argument we objected on the basis of no notice to them.

The Courts, the Circuit Courts are split on this one following the ironclad rule given orders.

The other Circuit saying well if there is adequate representation, the notice can be dispensed with.

Now that the judge, Three-Judge Court said this Statute of Wisconsin impinges upon a fundamental right.

Right to marry and that, this requirement of going to the judge and getting permission to remarry impinges upon that fundamental right and it’s therefore suspect statute and follows that the State must show a compelling State interest to sustain its validity and we object on this appeal to the application of this stringent result oriented type of test.

I think it was back in United States V. Carolene Products where a footnote by the writer of that opinion indicated that statutes are entitled to a strong presumption of constitutionality except perhaps where there is a right expressly set forth in the constitution itself.

This idea of course is grown and combinated as we pointed out in Shapiro V. Thompson in 1969 when the Court found that the right to travel, and of course it was in connection with welfare benefits was a fundamental right and the State had to show some compelling State interest that would over ride this impingement or this entitlement to exercise the fundamental right.

Since that time that case, the Boddie case on right to divorce, the Griswold case have all been cited in terms of their language to suggest this familial privacy right and to suggest that anything that touches upon the marriage the right to marriage all of its collateral attributes is suspect and subject to this test.

Though we note that in the Iowa case regarding the durational residency requirement of Iowa, Shapiro versus Thompson Doctrine of compelling State interest was not applied.

Warren E. Burger:

Does Wisconsin recognize common law marriages?

Ward L. Johnson, Jr.:

It does not.

Now Justice Harlan in his decent in Shapiro pointed out the danger of labeling something as a fundamental right which invokes this as we call it result oriented test, stringent test that the State must show a compelling State interest to override the impingement.

I would suggest —

Shapiro held that not that the right of Interstate travel is a constitutional right, constitutional protected right.

Ward L. Johnson, Jr.:

Yes.

And that was emphasized in the concurring opinion that it was more than just a subjective view of this Court that it was a fundamental right, but held rather that it was a right of Interstate travel as contrasted with international travel is constitutionally protected freedom.

Ward L. Johnson, Jr.:

Okay, expressed in the constitution, I presume.

But now we are talking about rights that are not.

Exactly.

Ward L. Johnson, Jr.:

Expressly contained in the constitution.

Exactly.

Ward L. Johnson, Jr.:

And I think it is a fundamental right that a youngster should be supported by his parents.

We talk about rights, we have duties.

The right to get married, procreate has an attendant duty to support children of that marriage.

Thurgood Marshall:

But how does the refusal, if he remarries you still cannot get the money out him, can you not?

Ward L. Johnson, Jr.:

True, there are other laws with respect to the AFDC —

Thurgood Marshall:

How does the refusal to get — to permit him to marry, get the money to the child?

Ward L. Johnson, Jr.:

It requires him to square up accounts, to pay the arrearages.

Thurgood Marshall:

Before he gets married.

Ward L. Johnson, Jr.:

Yes.

Thurgood Marshall:

Well, I mean how does that make him do it?

Ward L. Johnson, Jr.:

It makes him do it.

We had resolution from enumerable county boards requesting us to take this appeal.

Thurgood Marshall:

I still do not understand, you can still — how do you collect the money, you can sue him, right in Wisconsin how do you collect this money?

Ward L. Johnson, Jr.:

Well if he is —

Thurgood Marshall:

The support money how do you collect it?

Ward L. Johnson, Jr.:

Alright the county — the clerk of the Court collects the money in an ordinary case.

A divorce case or a support case.

Clerk of the Court —

Thurgood Marshall:

And how does his marring prevent the clerk from doing that.

Ward L. Johnson, Jr.:

Because —

Thurgood Marshall:

Listen to my question.

Ward L. Johnson, Jr.:

Alright.

Thurgood Marshall:

How does they preventing him from marrying, prevent the clerk no — how would his marrying prevent the clerk from collecting the money?

Ward L. Johnson, Jr.:

Well, the actual fact of his marrying, remarrying or marrying would not prevent the clerk from collecting the money, but it puts pressure on him to bring himself up-to-date with the respect to arrearages.

Thurgood Marshall:

It saves the clerk from going through the motion.

Ward L. Johnson, Jr.:

Well, the clerk does not — the clerk just receives the money, he does not enforce support obligations.

Thurgood Marshall:

Well who does?

Ward L. Johnson, Jr.:

The custodial parent.

Thurgood Marshall:

I thought you said the clerk did.

Ward L. Johnson, Jr.:

You asked me how does the money mechanically gotten to the child —

Thurgood Marshall:

But here is a man who says I will not give my child a nickel, now what does the State of Wisconsin do to get the nickel?

Ward L. Johnson, Jr.:

Where it is willful, they can press criminal charges.

Thurgood Marshall:

And they can do that whether he gets married or not?

Ward L. Johnson, Jr.:

That is true.

Thurgood Marshall:

What other way can they do it?

Contempt powers?

Ward L. Johnson, Jr.:

The private person can bring an action for contempt.

Thurgood Marshall:

And he can do that, he can do that after his marriage too can he not?

Ward L. Johnson, Jr.:

Yes he can.

Thurgood Marshall:

So what good is it stopping him from marrying?

Ward L. Johnson, Jr.:

The pressure it puts upon him.

Thurgood Marshall:

Moral.

Ward L. Johnson, Jr.:

Moral.

That is it.

Thurgood Marshall:

That is all.

Ward L. Johnson, Jr.:

To square accounts.

Thurgood Marshall:

Is that all?

Well it does prevent him from undertaking another legal obligation.

Ward L. Johnson, Jr.:

And incurring further obligation.

Thurgood Marshall:

He has already incurred one did not you say illegitimate child coming along.

Well he has already incurred that.

Ward L. Johnson, Jr.:

Okay, and before he incurs further let us have him face up to the responsibility that he has already acquired.

Yes, but at least the complaint says he has already incurred a second one.

Ward L. Johnson, Jr.:

Well.

So what does your statute do?

Ward L. Johnson, Jr.:

For Mr. Redhail it does not seem to do very much, but down the line somewhere, he is going to be called to square accounts if he wants that piece of paper from State of Wisconsin saying, hey we condone your marriage.

In conclusion, I would just point out that in its domestic relation policy, the State of Wisconsin has attempted to affect a higher standard of conduct than is normally been expected.

We have been shot down by the Three-Judge Court who failed — which failed to balance the interest of the custodial spouse, the interest of the child, the protection of the child and I point out that the purpose of this statute is annunciated by our Supreme Court State of Wisconsin Supreme Court and State (Inaudible) is to protect the child and protect the integrity of the marital relationship, that is all.

Warren E. Burger:

Thank you Mr. Johnson.

Let me ask just one question which marital relationship is it protecting, there was no marital relationship at all here, was there?

Ward L. Johnson, Jr.:

Down the line it is perhaps a deter, that you cannot walk out a family and —

And that is to protect the integrity of the preexisting marriage if there was one.

Ward L. Johnson, Jr.:

Yes.

Warren E. Burger:

Mr. Blondis.

Robert H. Blondis:

Mr. Chief Justice, may it please the Court.

The defendants have not denied that marriage involves a fundamental right, the source of the right is found, not in State law, but in our intrinsic human race.

William H. Rehnquist:

Mr. Blondis before you get into your legal argument, the Judgment of the District Court, I guess was entered in the Spring of 75.

Robert H. Blondis:

That is correct.

William H. Rehnquist:

No stay was entered.

Robert H. Blondis:

That is correct.

William H. Rehnquist:

Did your client go ahead and get married?

Robert H. Blondis:

Your Honor, our client got married Illinois before the injunction was entered by the Court.

A substantial period of time, the lapse between the time, but the class was ordered maintainable as a class action as to the plaintiffs.

Till then oral argument was held and then lastly the opinion was rendered and the order for judgment — and judgment were rendered.

William H. Rehnquist:

Did you call the attention of the District Court the fact that your client has gotten married Illinois?

Robert H. Blondis:

At that we could not get a hold of our client, Your Honor.

We were not aware that he got married in Illinois.

The Illinois marriage is invalid and he is still affected by section 245.10.

It maybe invalid by the Wisconsin statute.

Robert H. Blondis:

Yes, correct.

You don’t challenge that?

Robert H. Blondis:

We had not at that time, he got married after all the pleadings, after the case had been completely submitted to the Court.

I don’t understand — I am just curious, I guess it is not here, but here you have got a statute, Wisconsin statute, that is proposed to be operative on an Illinois marriage.

Robert H. Blondis:

Well, Mr. Redhail was a resident of Wisconsin when he went in seeking.

So, So, So?

While he —

Robert H. Blondis:

The constitutionality of that provision [Laughter] maybe questionable Your Honor.

It had not when Mr. Redhail came into our office, he was not being affected by that statute.

He kind of cared less about the statute.

He wanted to get married.

William H. Rehnquist:

Is he still a resident of Wisconsin.

Robert H. Blondis:

Yes, he is.

Did he ever tell the Judge?

Robert H. Blondis:

Did he ever?

Thurgood Marshall:

Ever tell the Trial Judge that he was a married man when he was asking for permission to get married.

Robert H. Blondis:

No, Your Honor.

He and his —

Thurgood Marshall:

But, do you think that is proper?

Robert H. Blondis:

He and his intended —

Thurgood Marshall:

Do you think that it is proper, to mislead a Judge?

Robert H. Blondis:

Your Honor, he never was in fact married.

His marriage was invalid.

Thurgood Marshall:

Well did he tell him that he had invalidly married?

Robert H. Blondis:

The Federal Judge?

Thurgood Marshall:

Yes.

Robert H. Blondis:

No, he did not.

Thurgood Marshall:

But do not you think he should have?

Robert H. Blondis:

In light of the fact Your honor that his marital status was the same as if he had never got married in Wisconsin —

Thurgood Marshall:

Why did he get married in Illinois?

Robert H. Blondis:

He got married in Illinois because he was having a second child by his intended spouse, had been refused permission by the State to receive permission to marry, sought desperately to get married and I have not discussed with him his exact reason for getting married, but it could have been that he just simply got impatient.

Thurgood Marshall:

But, do not you —

Robert H. Blondis:

Went into Illinois —

Thurgood Marshall:

But with all of this imagination, do not you think, it was your duty as a lawyer and a member of the Bar to give the Judge the true facts of the case that you are representing to him the truth.

The whole truth.

Robert H. Blondis:

Your Honor, we were not aware that he had gotten married until after the opinion and injunction.

In other words we lost touch with Mr. Redhail.

Thurgood Marshall:

Well did you think, then you should tell the Judge?

Robert H. Blondis:

Your Honor, no we did not.

Was the child born?

Robert H. Blondis:

Yes.

William H. Rehnquist:

I take it then that the marriage, that the formalization of the marriage, of the blessing by the State must have meant something to Mr. Redhail.

As he was willing to go down to Illinois and get there.

Robert H. Blondis:

To Mr. Redhail, it did.

We have since explained the legal predicament that he has put himself in.

For whatever reason the solemnization of his relationship which in fact is void under the eyes of Wisconsin law.

Did mean something to him and his spouse.

Well, I still do not understand why would you– why you say so readily that the marriage is void.

Robert H. Blondis:

Because Wisconsin– Under the, under the–

Wisconsin law stays another State marriage.

You do not suppose as any questions about that.

I suppose it was just a matter of age under Wisconsin law.

Male can not marry before he is 21.

he happen to be 19.

But, the age in Illinois was 18.

Robert H. Blondis:

I believe that under Wisconsin law, Wisconsin law, even in the age requirement is that if one leaves the State for the purpose of intentionally awaiting its State’s marriage laws, then returns to the State and retains residency.

That law or that marriage is invalid and would have to be validated.

In Mr. Redhail’s case, Mr. Redhail would have to go through an annulment proceedings.

Was this, one of those overnight trips to Waukegan?

Robert H. Blondis:

Yes.

Robert H. Blondis:

From what I understand.[Laughter]

Thurgood Marshall:

Mr. Blondis, what worries me is, you spending so much time trying to make your client’s child illegitimate.

Robert H. Blondis:

Your Honor, I am —

Thurgood Marshall:

Do you know what you are doing?

Robert H. Blondis:

No.

I am trying to have a loss —

Thurgood Marshall:

Well, if you make the marriage invalid, the child would be illegitimate.

Robert H. Blondis:

Your Honor, I did not make the marriage invalid.

The statute in question, section 245.10.

Thurgood Marshall:

But you are spending a whole lot of time now trying.

Robert H. Blondis:

Well, I am trying to persuade the Court that the statute is invalid and that Mr. Redhail has been victimized by the statute.

Not only has he been victimized by the statute, but his indented spouse has been victimized by the statute and his second child has been victimized by the statute.

Well, as legal predicament with respect to the present — to his additional marriage, Illinois is not going to be affected whether he win or lose this case.

Robert H. Blondis:

Oh, yes it will your Honor.

Why is that?

Robert H. Blondis:

If he — if this statute, if this Court affirms the Lower Court, Mr. Redhail would then —

Well, he can get a license.

Robert H. Blondis:

Yes.

I know but, just wining this case is not going to validate the marriage. Is not going to —

Robert H. Blondis:

No.

He would then have to undergo a State Court proceeding which has absolutely nothing to do with the question in this case.

That is right.

Robert H. Blondis:

And —

Why is that Mr. Blondis?

If the statute is invalid, it is no longer, presents any impediment to the validity of the Illinois marriage.

But, that —

That —

Robert H. Blondis:

The Illinois marriage complicates things because in — I do not believe it complicates things for purposes of this case.

It complicates things for Mr. Redhail because he would have to Your Honor, under Wisconsin law, there is no such thing as a void marriage.

That is in order for a marriage to be clear —

Well, that surely is going to paragraph five of the statute and the marriage —

Robert H. Blondis:

But, even then he would have to go through a Court procedure so that a Judge says that it is void.

In other words, it maybe void in fact, but a Court has to announce that it is void.

Well, but if we hold the statute unconstitutional, there is no basis for holding it void and the marriage would be good.

I do not understand why the marriage can be bad is the statute is bad.

Robert H. Blondis:

Oh, I see your point.

Yes, I think I —

That is provision, that provision just is not an issue here.

Robert H. Blondis:

That is right, that is right.

You see there are other provisions in the statute.

Yes, that is right, because it says any marriage in fact without compliance with this section, without compliance if we hold the section which needs to be complied was invalid there is no non-compliance.

Robert H. Blondis:

That is correct, as long as 245 is on books, in Wisconsin, then Mr. Redhail’s marriage is as if he never got married.

But, 245 was never a tact on that grounds in the District Court.

Robert H. Blondis:

The extra-territorial affect of it.

That is correct.

Is the second child living with Redhail now?

Robert H. Blondis:

To my knowledge Your Honor.

Is the woman that he purported to marry in Illinois living with him.

Robert H. Blondis:

Yes.

Mr. Blondis, the class certification was on February 20 on the 1975 as I understand it.

Is a marriage before or after that.

Robert H. Blondis:

Afterwards Your Honor.

So, the class had been certified before the Illinois marriage took place.

Robert H. Blondis:

Yes, class.

Yes, that is right and after, well after all argument had taken place.

Your Honor, the State in its brief proposed to this Court that because that this is a statute dealing with marriage and divorce, the State has peculiar interest in that area and therefore this Court should supply a rational relationship, equal protection or I suppose, substantive Due Process analysis to this case.

The State in my opinion gave no good reason why that should be the case, we are aware of cases both in marriage and divorce and in voting and probate where this Court has held that States have a peculiar interest in those areas, but we do not believe that the Court has ever gone so far as to hold that regulations which adversely effect serious long standing fundamental, constitutional rights are going to be completely deferred to by the State by the application of the rational relationship equal protection test.

Concerning the purposes of the statute, the State argued in the Lower Court that the purposes of the statute was the provision of counseling to persons who are about to go — undergo marriage.

I bring that up, only because the only legislative history available in behind the statute which is cited at pages 29 through 32 of our brief indicates that, that in fact was the benevolent purpose of the statute.

It was to provide counseling for persons who had support obligations and were about to undergo marriage.

Robert H. Blondis:

This statute obviously has nothing to do with counseling.

Counseling is not even mentioned in the confines of the statute.

Courts are not encouraged or mandated to give counseling, nor are applicants to the Courts encouraged to get it.

So, if counseling is still the purpose of the statute, it is completely irrational.

The reason most seriously forward by the State, presently in this appeal is that this statute protects the interests that Mr. Redhail’s child has to support.

We do not believe that either is the intent of the statute Mr. Redhail’s child has been supported by under the AFDC program almost since her birth that is if the first child.

The debt that Mr. Redhail owes is not to that child, the debt that he owes is to the State of Wisconsin.

What Wisconsin is saying in affect to Mr. Redhail is that until you pay us you can not get married

You mean that father has no responsibility?

Robert H. Blondis:

I am not, no Your Honor, I am not saying that at all.

Mr. Redhail went to paternity Court in 1972.

He admitted paternity in that action and the Court ordered that he pay support of $109 per month.

That although as the State agreed he was a minor and a high school student, well in any event the AFDC which he received — which his child is receiving is substantially above $109 per month, that he was ordered to pay.

Therefore what I am saying is that even if Mr. Redhail tomorrow came into the clerk of Court with all of his arrearages under that $109 support order and paid every cent of that even pay the $109 sometime into the future.

He still could not get married because his child would still be count – would still remain a public charge.

So, how the State can justify the statute by saying that–

But it not up to the State to justify the statute is it?

The State has enacted the statute and it is presentively constitutionally valid.

Robert H. Blondis:

I understand that Your Honor but what am I saying is that what I just said indicates that it really does not have much to do with its intended purpose.

Thurgood Marshall:

Well then why — then the State should not put support orders in at all?

Robert H. Blondis:

Your Honor.

Thurgood Marshall:

Do you know what you are arguing?

Robert H. Blondis:

No not at all —

Thurgood Marshall:

Because you say that 109 does not do any good.

Robert H. Blondis:

It would not do Mr. Redhail any good, it would do the child a lot of good.

Thurgood Marshall:

Well that is what I thought we would do the child some good.

Robert H. Blondis:

Certainly.

Thurgood Marshall:

That is what the State is saying.

Robert H. Blondis:

But what am I saying is that statute is not — this particular statute is not related to child support.

If the State is serious about collecting child support from Mr. Redhail the State has many methods available to it which are very effective.

Robert H. Blondis:

The State can take Mr. Redhail back in that paternity Court which originally set the $109 per month support and that State can say Mr. Redhail you tell the Court why you have not paid the $109.

What you are telling us that State could have enacted some other legislation.

Robert H. Blondis:

State has —

But it did enact this legislature and the question is it constitutionally valid?

Robert H. Blondis:

Yes, but the reason I make that point, the point that there is legislation which, there is other legislation available to it.

Well that is always true with any law.

Robert H. Blondis:

Is that is — it is my understanding under the either the substantive Due process or the Equal Protection strict scrutiny analysis, that the last prong of that analysis, is that there must be a showing not that there is a compelling State interest and that the legislation is tied to that interest.

But that there is no last intrusive method available for the State to accomplish its legitimate goal.

In accomplishing presuming that this accomplishes the State goal in coercing somehow Mr. Redhail to pay support.

It also takes away his fiancee’s right to marry, it absolutely prohibits her from marrying.

Mr. Redhail’s case —

Well marrying him.

Robert H. Blondis:

Marrying him yes.

There are 230 million or I guess 115 million people; males in United States.

Robert H. Blondis:

But she was adamant that she wanted to marry him.[Laughter]

It also has has the effect on Mr. Redhail’s case of stigmatizing his second child as an illegitimate child.

So the statute not only affects Mr. Redhail, it also affects many other person.

What about most if not all State have laws that a tell a man how is married to somebody else that he can not get married because he is married to somebody else.

This I suppose does not in fact prohibit him from impregnating some other female, you think that such a State law would be unconstitutional just because particularly as it affects somebody how has made some other woman pregnant.

Robert H. Blondis:

No Your Honor, I think this statute is unique to Wisconsin I think that —

Well then why does not your argument run the — make equally invalid bigamy law.

I said was a disqualification not a criminal thing —

Robert H. Blondis:

In the offer decision that this Court decided last term the Court again reiterated that the right to marry is a fundamental right and Stated that the right again is not a source of State law, but is basic human right.

But what if a man wants to marry his sister and the State says you can not do it?

Robert H. Blondis:

I am getting to that Your Honor.

The Court held that the right to marry is contoured in our society and in our traditions and I think that no one would argue that the tradition of marriage as this society knows it, would prohibit a person either from having two wives at one time or two husbands at one time for that matter or marrying his sister.

That is only because of statutory laws is in it?

Robert H. Blondis:

Yes, Your Honor, but the statute reflects the history and traditions of the fundamental right to marry and this compelling a person or prohibiting a person from marrying because his children are receiving public assistance.

I do not believe is a part of that fundamental or of that tradition as we know the right to marry —

Are you making kind of a natural law argument to us, Judeo-Christian morality.

Robert H. Blondis:

No, Your Honor all I am saying as far as the language in the offer opinion is language of this Court and language noting — that the Court, that the right to marriage is in fact older that the bill of rights.

You say that legislature can only enact the thing that you regard as traditional onto the notions of marriage.

Robert H. Blondis:

Well Your Honor, I do not believe that the –- presuming that there was legislation which seriously prohibited the right to marry and let us say that, that legislation was an age limitation.

I believe that, that type of limitation would be justifiable both because the State could show a very strong interest in it and because it has traditionally been a part of State’s role to define an age limit before which one can marry.

You say justifiable, you suggest the State has to justify that legislation?

Robert H. Blondis:

Well I do not — I think — I do not want to get into Semantics, I think that which either side is trying to justify it, there are some prohibitions and marriage that can certainly be justified and I that there are others that can not.

The point that I would stress is that Court does not have to decide in this case every justification or non-justification for concerning the interference on the right to marry.

But it has to lay down some principal reason for ruling in your favor if it does so and I take your suggestion that some principal reason can be laid down that would not also invalidate bigamy statute, well what is it?

Robert H. Blondis:

I believe Your Honor that the Court in these kinds of cases has considered each, each prohibition or interval has weighed each marriage, divorce law that it has been dealing with and its own individual merits in this case —

Well how does it determine its own individual merits issue, but I thought that was with the legislature.

Robert H. Blondis:

Alright.

We start from the analysis that marriage is fundamental right.

A fundamental right, a fundamental constitutional right and that I think that Court has reiterated that in numerous cases.

Warren E. Burger:

Is that fundamental right for a person 12 years old?

Robert H. Blondis:

No.

Warren E. Burger:

Now when the State passes this statute saying that they can not marry under the age of 18 is not one of the reason attributable to the legislature that most people under 18 are not able to support wives and children.

Is that not one of the consideration of the legislature?

Robert H. Blondis:

I am not sure, but it very well may be Your Honor.

Warren E. Burger:

Was not that not that a reasonable one?

Robert H. Blondis:

Yes.

Warren E. Burger:

Which could be attributed to the legislature.

Robert H. Blondis:

But Your Honor this statute does not even have that kind of a justification.

In order to justify , in order to justify this statute on those ground one would assume, one would have to assume that by entering into a marriage a person is becoming less able to support a prior child.

With a number of childless new marriages today and the number of households in which both spouses work there is entirely possible that by entering into a marriage one could actually improve ones ability to support a child from a former marriage or a child who was born out of marriage.

Warren E. Burger:

Well that is a good argument to advance to a Legislature, but it does not carry much weight as far as I am concerned.

How about your client.

Robert H. Blondis:

Your Honor in our —

In that respect, I am not — it might be true a lot of other people, but you are entitled to raise that unless you have some concrete objection on this regard.

Robert H. Blondis:

Well, Your Honor the class was defined to cover everyone who was affected by the Statute and the class was not defined on the basis of indigence versus non-indigence.

Well does the other side object to the class of designation.

Robert H. Blondis:

It has no — it has never objected to the definition of the class.

So are you think you can raise the problems of the indigent even though you petitioner, your client might be wealthy.

Robert H. Blondis:

In this case it would be exactly the opposite.

But the —

Well so you say your client is indigent or no.

Robert H. Blondis:

Yes, and I —

That is all I really wanted to know.

Robert H. Blondis:

Yes, there is a stipulation of fact in the record that, during all times that are relevant to the Litigation Mr. Redhail was indigent was unemployed and for a good deal of that time was a high school student.

Warren E. Burger:

And not capable of supporting this child.

Robert H. Blondis:

That is correct.

Mr. Blondis are you going to come at the new Statute.

Robert H. Blondis:

Your Honor I believe that the appellant’s summary of the new Statute is fairly accurate.

If Mr. — in addition to making some exceptions that are not found in the present Statute.

Mr. Redhail would not be covered at all by the new Statute, because it only covers support obligations which were entered into as a result of a marriage.

It does not cover out of wedlock children and I would hope that it might indicate suspicion on the part of the State Legislature as to some of the problems with the Wisconsin Statute

Do you agree with him that if we reverse the Lower Court here and sustain the Statute the new statute Statute becomes — is not applicable.

Robert H. Blondis:

Unless — unless another Court — the Legislation does not specifically refer to this case.

The Legislation says that the new section will go into affect if any Court stays or enjoins 245.10 which is the present Statute.

We made after submitting the supplemental memorandum to this Court made as much of an investigation as we could and to our knowledge there is no Litigation either pending or already decided, which would have that effect.

Mr. Blondis may we ask you and the Attorney of General both to let us know forthwith when the Governor moves on the bill that is pending on his desk.

Robert H. Blondis:

Most certainly.

So that we know whether it is approved.

Is there an over right provision in Wisconsin.

If it is veto.

Robert H. Blondis:

It wont be — my understanding is that will not be veto, yes there is an over right provision.

Warren E. Burger:

You might consider also if you — excuse me Mr. Justice Marshall.

Thurgood Marshall:

Go on.

Warren E. Burger:

Submitting a memorandum each of you on the impact Statute.

Now Justice Marshall’s Question.

Thurgood Marshall:

What I was wondering is the Statute — I do not know (Inaudible) is peculiar to me as to any other Statute in Wisconsin is a normal procedure to present Statute that are limited to the Court decision and say so in this Statute.

Robert H. Blondis:

This is the first time that I have seen this Wisconsin Your Honor.

I understand that has happed in some other States.

Mr. Blondis does the record tell us anything about the financial circumstances of the wife of the plaintiff, the present wife.

Robert H. Blondis:

No Your Honor.

So that even if had alleged that she was a very wealthy person it would have enabled him to discharge the support obligation.

He still could have married her.

Robert H. Blondis:

That is correct Your Honor.

Mr. Redhail could — Mr. Redhail I would like to emphasize again under this statute for all intends can never get married unless the custodian of his first child gets off of welfare and that is completely beyond his control.

So —

Thurgood Marshall:

If a child becomes a multimillionaire I think it will be —

Robert H. Blondis:

Yes because then the child would no longer receive welfare, but again the child becoming a multimillionaire is probably beyond his control.

Just a few comments concerning the abstention argument.

The defendants did not even seriously forward the abstention argument in the Lower Court and this Court has noted in a number of opinions that it will take that into consideration in determining whether abstention applies.

It is our opinion that abstention does not apply in any of its forms, the defendants argued that the Pullman Doctrine applies because the statute is constitutionally unclear, but it is our understanding of the Pullman Doctrine, that it only applies when the statue itself is unclear.

Concerning notice to the class of defendants the Trial Court noted in its opinion that there was as much unity of interest among those defendants as possibly there could have been.

Every defendant —

Why did you want a defendants class?

Robert H. Blondis:

Pardon me.

Why did you want a class of defendants here?

Robert H. Blondis:

Because Mr. Redhail could not have received permission in any county in the State of Wisconsin because each defendant in the State, each defendant which is every county clerk in the State of Wisconsin has exactly the same obligations on statute —

Yes, but surely it is a Court decision affecting one would be honored by every other county clerk in the State, would it not?

Robert H. Blondis:

I would hope so Your Honor.

Well and he only wants one marriage license, does he not?

Robert H. Blondis:

That is correct but —

So why does he need 72 county clerks to be enjoined?

Robert H. Blondis:

At the time that the action was brought —

This is a class action, Mr. Blondis?

Robert H. Blondis:

The real answer is that, if the action is a class action as to State wide class of plaintiffs.

All of those plaintiffs are not going to be applying to the Milwaukee County Court clerk Mr. Zablocki.

Thurgood Marshall:

Did you allege that even one — every county was represented?

Robert H. Blondis:

Pardon me.

Thurgood Marshall:

Do you have a member of your class in every county.

Robert H. Blondis:

Yes.

Thurgood Marshall:

Do you allege that?

Robert H. Blondis:

Every member of the plaintiff class.

Thurgood Marshall:

Yeah.

Robert H. Blondis:

I am not sure that it is —

Thurgood Marshall:

Well if you do not, then I see why you need every county clerk?

Robert H. Blondis:

I would —

Thurgood Marshall:

Right.

That problem is unanswered —

Robert H. Blondis:

That is correct.

Thurgood Marshall:

That problem is unanswered.

Robert H. Blondis:

In any event I would hope that were this Court should affirm the other members of the class of the defendant class would abide by the Court’s decision.

Why is everybody is so eager to get class actions going on both side of the case. Is this the Law School Theory these days or what is it?[Laughter]

Robert H. Blondis:

Your Honor in my Law School we did not study class actions.

Well is it not a fact in Wisconsin that during the abortions litigation they ignore the orders in certain districts and then they had to do it class action.

In the State of Wisconsin —

Robert H. Blondis:

There is some problem in that litigation with non-class action and enforcement of Federal Court orders.

Thank you.

Warren E. Burger:

Thank you.

Mr. Johnson do you think in your two remaining minutes there is anything you can do to help clarify this.

Ward L. Johnson, Jr.:

I will along with counsel for the appellee submit a memorandum, with respect to the new law, which the governor we expect will sign and I will ask any question in remaining two minutes that any —

Warren E. Burger:

I hear none, thank you gentlemen.

The case is submitted.