DAN MORALES

Al-rORNEY GENERAL 

### QBffice of tfy !Zlttornep dkneral &date of t!Cexas

The HonorableJohn Vance Dallas County District Attorney 411Blmstreet Dallas, Texas 75202

The HonorableHardy L. WilLaoan Howard County Attorney P.O. Box 2096 Bii Spria&Texas 79721

Dear Mr. Vance andMr. Whn: April 19.1996
Opiion No. DM-384

Re: Whether sections 1.045 and 1.07(a)(l) of the Family Code, requiringan applicantfor amaniagelicensetostateunderoaththathe
or she does not owe delinquentcourt-ordered child support, violate the Equal Protection Clauti of the Fourteenth Amendmentto the United States Constitution (RQ-862)

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 1.045provides as follows:

(a) An applicant for a mar+ license shall submit to the county clerk a &tement witnessedbytwocrediileperxonsand vaifiadbefomapasonauthorizadto~eoaths~thatasofthe date the applicationfor a marriage licenseis 6led the applicant does not owe delinquentcourtsrdered childsupport. (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 enforcementof an arrearageunder 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 statementunda this section. (d) An offenseunder this sectionis a statejail felony.
Act of May 26, 1995,74tb Lag., RS., ch. 655.5 5.04, 1995Tex. 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 establishesthe 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 informationrequiredby section 1.045. SeeFam. Code 8 1.07(a)(l).The HonorableJohn Vance - Page 2

The HonorableHardy L. Wtierson (~~-384)

You express concern that the foregoing provisions violate the Equal Protection Clause of the Fourteenth Amendmentto the United States Constitution, citingZcrblocAi V. 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 Wisconsintidwt “havingminorissue not in his custody and whichhe is under obligation to support by any court order orjudgment,” from obtaining a marriage license without a court order. Id. at 375 & n. 1. The statute provided that a court order givingpent&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. concludedthat 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 Zablockicontrolsand would thus considerwhetherthe staMes significantlyhtuferc with the right to marry and, if so, whetherthey survive strict suutiny.

In ibblodi, the Court rewgnid that reasonable state mgulations that do not signScantly intedbre with decisions to enter into marriage may legitimatelybe 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 Wisconsinor 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 suflicientlyburdened 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 suffera sesiousintrusioninto their freedom of choicein
an area in whichwe have held suchfreedomto be t5ndamental.
Id.

We believeit is very likelythat a court consideringa constitutionaichallengeto the Texas statutes would similarlyconclude that they burden a fimdamentaJ right. Under the statutes, noperson may obtain a marriage licensein Texas without submittingthe 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 financiallyunableto meet their child support obligationswillnot be able to

p. 2109The HonorableJohnVance - Page 3

The HonorableHardy L. Wdkerson (DM-384)

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 suflicientlyburdened by havingto do so that they will in effect be coerced into forgoing their right to marry.” Id.
ThereisasignificaatdiffereDcebawantheW~~~~andtheTaas statutory schemethat we believea court would wnsider. The Wisconsinstatute provided that marriages w&acted in violation of the statute were void. In this state, a marriage liwnse is required for ceremonialmatriage. 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 ceremonialmarriage is not affectedby any tkaud,mistake, or illegalitythat owurred in obtainingthe marriagelicense. 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 legallyvalid marriage. He or she may do so by obtaininga marriagelicensein 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 signiflcant

burden on the right to marry. A personwho illegallyobtains a marriagelicense would be subject to crimmalprosecution under subsections (c) and (d) of section 1.045. Furthermore, many couples, for religious or other deeply held personal reasons, may not view common-lawmarriageas an option.’

p. 2110TheHonorable John Vance - Page 4

The HonorableHardy L. Wtierson (DM-384)

Assum& that a wurt were to concludethat sections 1.045 and l.O7(a)(1)burden
a fbdamed right, it would then considerthe state’ s interests:

WhenaatatutoryclessificaUonsignUicantlyintafaeswiththe exercise of a Gmdamentalright, 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 Wloconsinasserkd 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 childrenis protected.” Id. The Court assumedthattheseintereatswerekgitimateandsubstamia&butwnchidedthattheatatute cMlldwtbc~~~whemeahcrelectcdbytheStateforlchieving~ imemtsannweA&impingeontherlghttoaMy.” Id. Therewasnoevidencethatthe statute was designedto 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’ sprior 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¬impingeuponthe right to marry [including wage assignmen& civil wntempt prowdings, and ciminal penalties].
Id. at 38940. The Court also dismissedthe suggestionthat the statute protected the abiity of applicants to meet support obligationsby preventing them fiom inwring new support obligations:

[Tlhe challenged provisions.

. . are grossly underinclusive with respecttothispurpo~,e,wthcydonotlirnitinMywaynew financialwmmitments by the applicant other than those arising out of the contemplated marriage. The statutory classi6cation is substantiallyoverinclusiveas well: GVUIthe possibilitythat the new spouse will actually better the applicant’ s financial situation by contributing income 6om a job or othenvise, the statute in msny

p. 2111The HonorableJohn Vance - Page 5

The HonorableHardy L. Wtierson (DM-384)

cases may prevent afl’ected individuals

f.+om improvingtheir 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 obligationsand preventing delinquent obligers hm incur&g new child support obligations. 4 It is very likely that a court applying the standard articulated in Zablockiwould determinethat 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 preventingdelinquentchild support obligers from hcurring new child support obligations: they do not limitin any way new fmancialcommitments by an applicantother than those arising out of the contemplated ceremonialmar&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 Claux6The Honorable JohnVance - Page 6 (DM-384)

The HonorableHardy 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 Clauseofthe Fourteenth Amendmmt to the united states constiMiou

DAN MORALES Attorney Generalof Texas

JORGEVEGA FyrtAs&antAttomeyGamral

SARAHJ. SHIRLEY Chair, Opiion Committee

p. 2113