DAN MORALES 

Al-rORNEY GENERAL 

QBffice of tfy !Zlttornep dkneral 

&date of t!Cexas 

The Honorable John Vance 

Dallas County District Attorney 

411Blmstreet 

Dallas, Texas 75202 

The Honorable Hardy L. WilLaoan 

Howard County Attorney 

P.O. Box 2096 

Bii Spria& Texas 79721 

Dear Mr. Vance and Mr. Whn: 

April 19.1996 

Opiion No. DM-384 

Re: Whether sections 1.045 and 1.07(a)(l) 

of the Family Code, requiring an applicant for 

amaniagelicensetostateunderoaththathe 

or she does not owe delinquent court-ordered 

child support, violate the Equal Protection 

Clauti of the Fourteenth Amendment to 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 1.045 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 Subchapter B, 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 

The Honorable Hardy L. Wtierson 

(~~-384) 

You express concern that the foregoing provisions violate the Equal Protection 

Clause of the Fourteenth Amendment to the United States Constitution, citing ZcrblocAi 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 

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 #foregoing Texas statutes would conclude that 

Zablocki controls and would thus consider whether the staMes significantly htuferc 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 following reasons: 

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 challenge to the 

Texas statutes would similarly conclude that they burden a fimdamentaJ right. 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 financially unable to meet their child support obligations will not be able to 

p. 2109 
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The Honorable Hardy 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 

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 obtaining the 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 

signiflcant burden on the right to marry. A person who illegally obtains 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.’ 

p. 2110 
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The Honorable Hardy L. Wtierson 

(DM-384) 

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 inEingement on the right to marry for the following reasons: 

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¬impingeuponthe 

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 overinclusive as 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 Hardy L. Wtierson 

(DM-384) 

cases may prevent afl’ected individuals f.+om improving their 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 (withholding fiom 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 fmancial commitments by 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 

p. 2113