                           QBffice of tfy !Zlttornep dkneral
                                     &date of t!Cexas
DAN MORALES
 Al-rORNEY
        GENERAL                             April 19.1996

      The Honorable John Vance                     Opiion No. DM-384
      Dallas County District Attorney
      411Blmstreet                                 Re: Whether sections 1.045 and 1.07(a)(l)
      Dallas, Texas 75202                          of the Family Code, requiring an applicant for
                                                   amaniagelicensetostateunderoaththathe
      The Honorable Hardy L. WilLaoan              or she does not owe delinquent court-ordered
      Howard County Attorney                       child support, violate the Equal Protection
      P.O. Box 2096                                Clauti of the Fourteenth Amendment to the
      Bii Spria& Texas 79721                       United States Constitution (RQ-862)

      Dear Mr. Vance and Mr. Whn:

             You ask about the wnstitutionality of sections 1.045 and 1.07(a)(l) of the Family
      Code. These provisions require an applicant for a maniage license to submit a sworn
      statement that he or she does not owe delinquent court-ordered child support. Newly
      enacted section 1.045 provides as follows:
                     (a) An applicant for a mar+         license shall submit to the
                county clerk a &tement witnessedbytwocrediileperxonsand
                vaifiadbefomapasonauthorizadto~eoaths~thatasofthe
                date the application for a marriage license is 6led the applicant does
                not owe delinquent courtsrdered child support.
                    (b) A child support payment is considered delinquent for
                purposes of Subsection (a) if the child support obligee under a child
                support order that applies to the applicant is entitled to seek
                enforcement of an arrearage under SubchapterB, Chapter 14.
                    (c) A person commits an offense if, with intent to deceive and
                with knowledge of the statement’s meaning, the person submits a
                false statement unda this section.
                    (d) An offense under this section is a state jail felony.
      Act of May 26, 1995,74tb Lag., RS., ch. 655.5 5.04, 1995 Tex. Sess. Law Serv. 3543,
      3559. At the same time the legislature enacted the foregoing provision, it also amended
      section 1.07(a)(l) of the Family Code, which establishes the conditions under which a
      county clerk may issue a marriage license. Id. 8 5.05. That section now provides that a
      county clerk may not issue a marriage license if either applicant fails to provide the
      information required by section 1.045. See Fam. Code 8 1.07(a)(l).
The Honorable John Vance - Page 2           (~~-384)
The Honorable Hardy L. Wtierson



        You express concern that the foregoing provisions violate the Equal Protection
Clause of the Fourteenth Amendmentto the United States Constitution, citing ZcrblocAiV.
Rdhil, 434 U.S. 374 (1978). In that case, the United States Supreme Court considered
the constitutionality of a Wisconsin statute that prohibited certain persons, namely every
Wisconsin tidwt “having minor issue not in his custody and which he is under obligation
to support by any court order or judgment,” from obtaining a marriage license without a
court order. Id. at 375 & n. 1. The statute provided that a court order giving pent&ion
could be granted only if the marriage applicant submitted proof of compliance with the
support obligation and demonstrated that the children covered by the order “[were] not
then and [were] not likely there&r to become public charges.” Id The opinion of the
col@afkasmlingtllattllerigllttomarlyis~                         id. at 383-86. concluded that
tberaatuted~caatlyinterfendwitbthatfundamentalri~mdwasthaefore~jectto
mitt scmtiny under the Equal Protection C&use, id. at 388. We believe a court faced
with a constitutional challenge to the #foregoingTexas statutes would conclude that
Zablocki controls and would thus consider whether the staMes significantlyhtuferc with
the right to marry and, if so, whether they survive strict suutiny.

       In ibblodi, the Court rewgnid that reasonable state mgulations that do not
signScantly intedbre with decisions to enter into marriage may legitimately be imposed,
but held that the statute at issue interfered “directly and substa&lly with the right to
marry,” id. at 387, for the followingreasons:
                Under the challenged statute, no Wisconsin resident in the
           a&ted class may marry in Wisconsin or ehewhere without a court
           order, and marriages contracted in violation of the statute are both
           void and punishable as miminal offenses. Some of those in the
           affected class . ..willneverbeabletoobtainthemcessarycmut
           order, because they either lack the 6nancial means to meat their
           support obligations or cannot prove that their children will not
           become public charges. These persons arc absolutely prohibited
           from getting married. Many others, able in theory to satisfy the
           statute’s requirements, will be sufliciently burdened by having to do
           so that they will ill effbct be werwd into forgoing their right to
           marry. And even those who can be persuaded to meet the statute’s
           requirements suffer a sesious intrusion into their freedom of choice in
           an area in which we have held such freedom to be t5ndamental.
Id.

        We believe it is very likely that a court considering a constitutionai challengeto the
Texas statutes would similarly conclude that they burden a fimdamentaJright. Under the
statutes, no person may obtain a marriage license in Texas without submitting the sworn
statement to the wunty clerk. A person who submits a false statement is subject to
uiminal penalties. Persons who owe delinquent wtut-ordered child support will be
unable to obtain a marriage lice& until they have paid their child support obligations.
Those who are financiallyunable to meet their child support obligations will not be able to

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The Honorable John Vance - Page 3         (DM-384)
The Honorable Hardy L. Wdkerson



submit such a statement and therefore will be precluded from entering into ceremonial
maniage. “Many others, able in theory to satisfy the statute’s requirementa will be
sufliciently burdened by having to do so that they will in effect be coerced into forgoing
their right to marry.” Id.

         ThereisasignificaatdiffereDcebawantheW~~~~andtheTaas
statutory scheme that we believe a court would wnsider. The Wisconsin statute provided
that marriages w&acted in violation of the statute were void. In this state, a marriage
liwnse is required for ceremonial matriage. See Fam. Code 0 1.01. This state, however,
recognizes wmmon-law marriage, which may, but need not, be evidenced by de&ration
of informal mar-r&. Id. 55 1.91- .95. Every marriage mered into in Texas is
wnsidaedvalidunlessitismadevoidbylaworhismadevoiQblebylaw~is
annulled. Id. 0 2.01. The fact thata party to a marriage makes a false stamment under
section 1.045 of the Family Code does not make the marriage void or voidab1e.r
Moreover, the validity of a ceremonial marriage is not affected by any tkaud, mistake, or
illegality that owurred in obtainingthe marriage license. Id. 5 2.02.2

        Therefore, unlike the Wisconsin statute, the Texas statutes do not absolutely
preclude a person who owes deliiuent wurt-ordered child support iiom entering into a
legally valid marriage. He or she may do so by obtaining a marriage license in violation of
section 1.045 and entering into a ceremonial marrisge (which will be valid despite the
illegality, see id.). or entering into a common-law marriage with or without tiling a
de&ration of informal marriage. We do not believe that a court would necem&y
conclude on the basis of this f&t, however, that the Texas statutes impose any less
signiflcantburden on the right to marry. A person who illegallyobtains a marriage license
would be subject to crimmal prosecution under subsections (c) and (d) of section 1.045.
Furthermore, many couples, for religious or other deeply held personal reasons, may not
view common-law marriage as an option.’




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TheHonorable John Vance - Page 4          (DM-384)
The Honorable Hardy L. Wtierson



       Assum& that a wurt were to conclude that sections 1.045 and l.O7(a)(1) burden
a fbdamed right, it would then consider the state’s interests:
               WhenaatatutoryclessificaUonsignUicantlyintafaeswiththe
          exercise of a Gmdamental right, it cannot be upheld unless it is
          supported by sufliciently important state interests and is closely
          tailorwJtoefl&uamordythoseinterests.
ikb&cki, 434 U.S. at 388. The state of Wloconsin asserkd that the statute at issue in
za?ck.i served two interests: “the pemdssion-to-marry pmweding fknkhes an
apportunitytocounselthe~ti~utotheneaMityofllfilliaghispriorRlpport
obligations; and the v&ire of the out-of-ody        children is protected.” Id. The Court
assumedthattheseintereatswerekgitimateandsubstamia&butwnchidedthattheatatute
cMlldwtbc~~~whemeahcrelectcdbytheStateforlchieving~
imemtsannweA&impingeontherlghttoaMy.”                   Id. Therewasnoevidencethatthe
statute was designed to k&her the first interest. .!ke id. at 388-89. With respect to the
second interest, the Court wnchrded that the “wllection device” rationale could not
justify the statute’s broad inEingementon the right to marry for the followingreasons:
               Piiwithrespecttoindividualswhoareunabletomeetthe
          statutory rquiremen& the statute merely prevents the applicant
          from getting msrried, without delivering any money at all into the
          hands of the applicant’s prior children. More importantly, regardless
          of the applicant’s abiity or willingness to meet the statutory
          requimm~thestatealreadyluu               tamemus 0th~ means for
          exacting wmpliance witb support obligationa,means that are at least
          kpeffectivepotheianantMe’sandyet&notimpingeuponthe
          right to marry [including wage assignmen& civil wntempt
          prowdings, and ciminal penalties].
Id. at 38940. The Court also dismissed the suggestion that the statute protected the
abiity of applicants to meet support obligations by preventing them fiom inwring new
support obligations:
          [Tlhe challenged provisions. . . are grossly underinclusive with
          respecttothispurpo~,e,wthcydonotlirnitinMywaynew
          financial wmmitments by the applicant other than those arising out
          of the contemplated marriage. The statutory classi6cation is
          substantially overinclusiveas well: GVUI the possibility that the new
          spouse will actually better the applicant’s financial situation by
          contributing income 6om a job or othenvise, the statute in msny




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The Honorable John Vance - Page 5            (DM-384)
The Honorable Hardy L. Wtierson



              cases may prevent afl’ectedindividualsf.+omimprovingtheir abiity to
              sati.@ their prior support obligations.
Id. at 390.

        We assume the legislature enacted section 1.045 and amended section 1.07(a)(l)
in order to protect the economic interests of marriage applicants’ prior children by
~~LII@Q the payment of support obligations and preventing delinquent obligers hm
incur&g new child support obligations.4 It is very likely that a court applying the
standard articulated in Zablocki would determine that the Texas statutes are not narrowly
tailored to achieve only those interests. Like the Wiswnsin statute, the Texas statutes
merely preclude a marriage license applicant who is delinquent hm entering into
ceremonial marriage, without obtainhg timds for the applicant’s prior children.
Fmhermore, the state of Texas, like tpe state of Wswnsin, has many more efTective
means of enforcing wurt-ordaed child support. See. e.g., Fam. Code tbs. 157
(aborcmrmt of child support orders), 158 (withholdingfiom eamings for child support).
231 (Title IV-D program), 232 (suspension of license for failure to pay child support).
TheTewsstatutesalJosufferthesamedefectsastheWIsconsin~~withrrspectto
the goal of preventing delinquent child support obligers from hcurring new child support
obligations: they do not limit in any way new fmancialcommitmentsby an applicant other
than those arising out of the contemplated ceremonial mar&g@, nor do they take into
account the possiiity that the new spouse will actually better the applicant’s hncial
situation by contributing income, thus improving the applicant’s abiity to satisfy prior
support obligations. For these reusons, it is the opinion of this 05cc that sections 1.045
and 1.07(a)(l) of the Family Code unnecessarily impinge on the right to many and
therefore violate the Equal Protection Claux6
The Honorable John Vance - Page 6      (DM-384)
The Honorable Hardy L. Willcason



                               SUMMARY
             Family Code sections 1.045 and 1.07(a)(l), requiring an
         applicantforamarriageliceMetosurteundaoaththatheorrhe
         dou not owe dehquent wurt-ordered child support, unneces&ly
         impingeontlte&httomanyandtherefbreviolatetheEqual
         Protection Clause of the Fourteenth Amendmmt to the united states
         constiMiou




                                                  DAN MORALES
                                                  Attorney General of Texas

JORGE VEGA
FyrtAs&antAttomeyGamral

SARAH J. SHIRLEY
Chair, Opiion Committee




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