Two principles enjoy almost universal recognition. First, the state plays a central role in regulating marriage.61Brian H. Bix, State Interests in Marriage, Interstate Recognition, and Choice of Law, 38 Creighton L. Rev. 337, 338–39 (2005) (“[T]he history of American family law (especially American marriage law) has been that of state control.”). Second, the Supreme Court recognized a constitutional right to marry enshrined in the Fourteenth Amendment.62 Washington v. Glucksberg, 521 U.S. 702, 720–721 (1997) (enumerating the right to marry from a limited number of unenumerated well-established rights); Washington v. Harper, 494 U.S. 210, 224 (1990) (states without specifying that the “right to marry. is a right protected by the due process clause”); see also Metteer, op. cit. cit., note 18, p.

265. This section will articulate the contours of the right to marry. It will then examine how this constitutional right exists alongside the recognized role of the state in regulating marriage. Finally, it examines the degree of control applicable to State violations of the fundamental right to marry. Although marriage law and the criminalization of incest are different regulatory systems – the former regulating who can marry, the latter determining who can legally have sex – ostentatious relationship legislation often operates consistently in both systems.49Charles E. Torcia, 2 Wharton`s Criminal Law § 241 (15th edition 2020). States often use the term “incest” in their marriage regulations and define who is allowed to marry by referring to who is allowed to have sex.50Id.; see for example Miss. Code. Ann. § 97-29-27 (West 2021) (“If a person marries in the degrees prohibited by law, he is guilty of incest.”).

To put it bluntly, a marriage ban does not make such a relationship de facto incestive. William Mack, William Benjamin Hale & Donald J. Kiser, 31 Corpus juris: Being a Complete and Systematic Statement of the Whole Body of the Law, as Incorporated in and Developed by All Reported Decisions 376 (1923). These are separate areas of legislation. Therefore, all fifty states prohibit marriage between members of the nuclear family,51 Joanna L. Grossman & Lawrence M. Friedman, Inside the Castle: Law and the Family in 20th Century America 45 (2011). and all states with incest laws criminalize sexual relations between parents and children.52 McDonnell, op.

cit. cit., note 17, p. 349. In general, legal variation increases as one moves away from the biological nuclear family. Id., pp. 348–50. All but one do the same for siblings, Ohio being the only exception.53Id. at 349; see also Ohio Rev. Code Ann. § 2907.03 (West 2021). The first actual laws against first-degree marriage appeared during the Civil War, when Kansas banned the practice in 1858, followed by Nevada, North Dakota, South Dakota, Washington, New Hampshire, Ohio, and Wyoming in the 1860s. Meanwhile, the six jurisdictions that invent exceptions to the general prohibitions based on age and infertility171See footnotes 45-47 above and accompanying text.

recall the provisions on prior authorization adopted by the Court in Zablocki172Zablocki v. Redhail, 434 U.S. 374 (1978) (requires judicial consent of an uncustody parent prior to marriage). and Turner.173Turner v. Safley, 482 U.S. 78 (1987) (inmates must obtain jailer`s consent prior to marriage). In these cases, circumscribed identities – persons who were in default of child support or detainees – were not absolutely excluded from marriage under the laws, but the laws linked access to classified identities to marriage to obtaining exemptions from designated state officials.174Vgl. Zablocki, 434 U.S. at 375–78 (allowed a non-custodial parent to marry after “first obtaining a court order authorizing the marriage”), with Turner, 482 U.S. at 96 (allows inmates to marry, provided that “the prison warden has approved the marriage after determining compelling reasons to do so”).

However, the court found that such requirements were far too invasive.175See Zablocki, 434 U.S. in Case 387 (possession of a prior permit has indeed constituted a total obstacle for persons in the class concerned who “do not have the financial means to meet their maintenance obligations or cannot prove that their children will not become public burdens”, “sufficiently burdened” those who “are effectively forced to renounce their right to marry”), and acted for all members of the class as “a grave encroachment on their free will in a field where we have held this freedom to be fundamental,” with Turner, 482 U.S.