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Subject Area: Law
Topic: The American Revolution and Constitution

§ 180.: Marriage, a natural status, subject to police regulation.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 180.

Marriage, a natural status, subject to police regulation.—

Whatever may be one’s views concerning the philosophical origin of the institution of marriage; it matters not whether it is viewed as a divine institution and a sacrament, or as the natural result of the social and physiological forces; all are agreed that it has its foundations in nature, and is not a human contrivance. Mankind cannot be conceived as existing without this status, for the marital relation is co-existent with, and must have accompanied, the beginning of the creation. The natural element of marriage is discoverable in like relationships among most, if not all, of the lower animals. It is, therefore, but a natural status, one that is brought into existence by natural forces, and cannot be successfully prevented or abolished. The natural status of marriage works for the good or woe of mankind, according as it is founded in purity and rests upon sound spiritual and physical foundations, or assumes a contrary character. The welfare of society is inseparably wrapped up with the success of the marital relations of its members; and ill-assorted marriages, marriages between persons who are either mentally or physically unfit to enter into the relation, will surely bring harm to society; while appropriate marriages constitute the very foundation of society, and its welfare depends upon the fostering and encouragement of them. Indeed nations have often provided inducements to enter into the relation, at times when the general extravagance of the people deterred them from assuming the responsibilities of husband and wife. If, therefore, a happy marriage between competent parties redounds to the lasting benefit of society, and a marriage between persons, who through mental or physical deficiencies are incapable of contracting a happy marriage, produces harm to the State, surely the State is interested in promoting and encouraging the former, and discouraging and preventing the latter. The State may, therefore, institute regulations having that purpose in view, in the exercise of the ordinary police power. The right of the State to regulate marriages, determining the capacities of parties, and the conditions of marriage, has never been questioned. Indeed, it would be absurd to assert that the State could not prohibit polygamy, and deny the right of marriage to persons whose marriage, on account of their deficiencies, or on account of their near relationship to each other, is likely to be harmful to society in one or more ways. Mr. Bishop says:1 “The idea, that any government could, consistently with the general well being, permit marriage to become merely a thing of bargain between men and women, and not regulate it by its own power, is too absurd to require refutation.”

The tendency of modern thought is to recognize no limit to the power of the government to regulate marriage. “Chief Justice Cockburn, in one case, said that the Parliament could deny the right of marriage altogether. It is not likely that others would go so far in recognition of the police power of the State, for it is generally conceded that marriage is a thing of natural right,”1 and cannot be denied except for some good legal reason. But it does not seem to be settled what are good reasons, and who shall determine what they are. Mr. Bishop says: “Surely it (the government), will retain the right to regulate whatever pertains to marriage in its own way, and to modify the incidents of the relation from time to time as itself pleases.”2 And while he recognizes the natural right to marry, the only benefit derived from this recognition is to throw all presumption in favor of the legality of the marriage, and require the courts to sustain the validity of a marriage, “unless the legal rule which is set up to prevent this conclusion is distinct and absolute, or some impediment of nature intervenes.”3 Judge Cooley admits that the State’s control of marriage is not unlimited, but finds it difficult to determine the limitations. He says: “If the regulations apply universally and impartially, a question of constitutional law can scarcely arise upon them, for every independent State must be at liberty to regulate the domestic institutions of its people as shall seem most for the general welfare. A regulation, however, that should apply to one class exclusively, and which should not be based upon any distinction between that class and others which could be important to the relation, must be wholly unwarranted and illegal. This principle is conceded, but it is not easy to determine what regulation would come within it.”4

[1]1 Mar. & Div., § 1.

[1]1 Bishop Mar. & Div., § 13; Cooley’s Principles of Const. Law, p. 228.

[2]1 Bishop Mar. & Div., § 12. See, also, Pennoyer v. Nuff, 95 U. S. 714.

[3]1 Bishop Mar. & Div., § 13.

[4]Cooley’s Principles of Const. Law, 228.