Zabiocki, Milwaukee County Clerk v. Redhail
Decided on Jan. 18, 1978; 434 US 374

State pays underage father's child support and later denies him a
marriage license because he failed to re-pay the state after turning 18 


A. Issues Discussed: Civil Rights (state), 1st Amendment, 5th Amendment, 9th Amendment, and 14th Amendment, equal protection, due process

B. Legal Question Presented:

Did the Wisconsin statute (245.10 [Sections] 1, 4, and 5) denying adjudication of marriage licenses due to unpaid child support violate the Equal Protection Clause of the 14th Amendment?


A. Background:

In 1972, Roger Redhail (appellee), was sued in a paternity action in Milwaukee County, Wisconsin.  Admitting that he was the father of the child, the court ordered him to pay child support until the child reached the age of eighteen.  Due to his minor status and enrollment in high school at that time, Redhail was unable to pay for the child support.  Accordingly, Redhail’s child was placed in public charge and child support was provided by the state of Wisconsin.

In 1974, Redhail attempted to obtain a marriage license in Milwaukee County.  The county clerk denied his marriage application under a state statute (245.10 [Sections] 1, 4, and 5) on the ground that Redhail had not yet repaid the state for fulfilling his child support obligations. 

Redhail proceeded to file a class action suit against the appellant County Clerk of Milwaukee Thomas Zablocki and all Wisconsin county clerks in the District Court of the Eastern District of Wisconsin.  He claimed the state law, which prevented him from marrying without a court order, was unconstitutional on the grounds that it violated his Fourteenth Amendment right under the Equal Protections Clause.  Appellee requested declaratory and injunctive relief.

The District Court found the law unconstitutional because while Wisconsin clearly had a legitimate interest in child welfare, that interest could not be allowed to interfere with the fundamental right of marriage.  Although the state had a compelling interest when concerned with noncustodial children in public charge, this interest was insufficient in justifying the marriage restrictions it imposed.

The United States Supreme Court granted an appeal to consider the complex issues that arise when states’ intercede with the right to marry.
B. Counsel of Record:
Opposing Side
Robert H. Bondis argued the cause and filed briefs for appellee.

Ward L. Johnson, Jr., Assistant Attorney General of Wisconsin argued the cause for appellant.  With him on the briefs were Bronson C. La Follette, Attorney General, Robert P. Russell, and John R. Devitt.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Terry W. Rose filed a brief for the Wisconsin Civil Liberties Union Foundation, Inc., as amicus curiae urging affirmance. No amici curiae briefs were filed on behalf of petitioner.

"At issue in this case is the constitutionality of a Wisconsin statute, 245.10 (1), (4), (5) (1973), which provides that members of a certain class of Wisconsin residents may not marry, within the state or elsewhere, without first obtaining a court order granting permission to marry.  This class is defined by the statute to include any 'Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment.'
The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligations and, in addition, demonstrates that the children covered by the support order 'are not then and are not likely thereafter to become public charges...'

In evaluating 245.10 (1), (4), (5) under the Equal Protection Clause, ‘we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected...'

Since our past decisions make clear that the right to marry is of fundamental importance… with most recent decisions having established that the right to marry is part of the fundamental 'right of privacy implicit in the Fourteenth Amendment's Due Process Clause [Griswold v. Connecticut (1965]…'

‘While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions ‘related to marriage [Loving v. Viriginia (1967)]…'

We believe that 'critical examination' of the state interests advanced in support of the classifications is required… When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interest… We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interest unnecessarily impinge on the right to marry, the statute cannot be sustained…

The statutory classifications created by 245.10 (1), (4), (5) thus cannot be justified by the interests advanced in support of it.

The judgment of the District Court is, accordingly, affirmed."
Justice Vote: 8 Pro vs. 1 Con
  • Marshall, T. Pro (Wrote majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Burger, W. Pro (Wrote concurring opinion)
  • Stewart, P. Pro (Wrote concurring opinion)
  • Powell, L. Pro (Wrote concurring opinion)
  • Stevens, J. Pro (Wrote concurring opinion)
  • Rehnquist, W. Con (Wrote dissenting opinion)

The ACLU filed as amicus urging affirmance; The US Supreme Court affirmed the District Court decision 8-1, giving the ACLU an apparent win.