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Pathfinder

June 20, 2011

Cynthia Richardson

PA201-03: Legal Research

Instructor: David Weigel

Unit 9


 

 

 

 


Marriage Discrimination


Introduction

I will follow the path of marriage discrimination from as far back as the 1800’s. As a marriage officiate that performs Inmate/Detainee marriages I run into a great deal of opposition. As I started the research for Inmate marriages I found that the discrimination is way deeper than just the lack of understanding that people have for what they do not understand or agree with. One of the greatest hardships is with the County Recorders rules regarding the need for the physical appearance of the bride and groom when applying for the marriage license. Affidavit of inability to appear form is required by some counties; in most California Counties they require at least one, either bride or groom to be present to pull the license. This can not always be the case, as in the marriage I am working on now with both are in custody.


Federal and State Statutes

USCS Const. Amend. 14, § 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


23 Pa.C.S. § 1301 (2011)

§ 1301. Marriage license required

(a) General Rule-No person shall be joined in marriage in this Commonwealth until a marriage license has been obtained.

(b) Place of marriage ceremony-A license issued under this part shall authorize a marriage ceremony to be performed in any county of this Commonwealth.

(c) Identity of Applicants-Prior to issuance of the license, the person issuing the license must be satisfied as to the identity of both of the applicants.

CAL. FAM. CODE § 502

If for sufficient reason, as described in subdivision (d), either or both of the parties to be married are physically unable to appear in person before the county clerk, a confidential marriage license may be issued by the county clerk to the person solemnizing the marriage if the following requirements are met:

(a)The person solemnizing the marriage physically presents an affidavit to the county clerk explaining the reason for the inability to appear.

(b)The affidavit is signed under penalty of perjury by the person solemnizing the marriage and by both parties.

(c)The signature of any party to be married who is unable to appear in person before the county clerk is authenticated by a notary public or a court prior to the county clerk issuing the confidential marriage license.

(d)Sufficient reason includes proof of hospitalization, incarceration, or any other reason proved to the satisfaction of the county clerk.

CAL. FAM. CODE § 426

If for sufficient reason, as described in subdivision (d), either or both of the parties to be married are physically unable to appear in person before the county clerk, a marriage license may be issued by the county clerk to the person solemnizing the marriage if the following requirements are met:

(a)The person solemnizing the marriage physically presents an affidavit to the county clerk explaining the reason for the inability to appear.

(b)The affidavit is signed under penalty of perjury by the person solemnizing the marriage and by both parties.

(c)The signature of any party to be married who is unable to appear in person before the county clerk is authenticated by a notary public or a court prior to the county clerk issuing the marriage license.

(d)Sufficient reason includes proof of hospitalization, incarceration, or any other reason proved to the satisfaction of the county clerk.

42 U.S.C. § 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Ask A Lawyer Online.

Federal/State Cases

Keeney v. Heath, 57 F.3d 579 (7th Cir. Ind. 1995)

This is a case where a correction officer and an inmate fell in love and she was told if she continued in a relationship she would lose her job.

Zablocki v. Redhail, 434 U.S. 374 (1978)

“Wisconsin residents were prevented under Wis. Stat. § 245.10 (1973) from marrying if they were behind in their child support obligations or if the children to whom they were obligated were likely to become public charges.”

Safley v. Turner, 777 F.2d 1307 (8th Cir. Mo. 1985)

The court affirmed the district court's application of a strict scrutiny level of review to prison rules prohibiting inmates from exchanging mail with other inmates and from marrying and the district court's finding that the rules were unconstitutional.

2004 PA Super 125; 849 A.2d 254 (2004)

Appellant prisoner challenged the order of appellee Court of Common Pleas of Schuylkill County, Orphans' Court (Pennsylvania), which denied his writ of mandamus and dismissed his appeal from the orphans' court's refusal to issue him a marriage license. The prisoner's fiancée had gone to the office of the clerk of the orphans' court to obtain the license. The clerk refused the application, because the prisoner was unable to personally appear.

Loving v. Va., 388 U.S. 1 (1967)

Appellants, a husband and his wife, sought review of a judgment from the Supreme Court of Appeals of Virginia which held that Va. Code Ann. §§ 20-58 and 20-59, which were adopted by to prevent marriages between persons solely on the basis of racial classifications, did not violate the Equal Protection and Due Process Clauses of U.S. Const. amend. XIV.

Pace v. Ala., 106 U.S. 583 (1883)

Plaintiff in error appealed an order of the Alabama Supreme Court which upheld his conviction for living in a state of adultery with a white woman, in violation of Ala. Code § 4189. Plaintiff in error claimed that § 4189 violated the Fourteenth Amendment because it denied him equal protection of the law.

Toms v. Taft, 338 F.3d 519 (6th Cir. Ohio 2003)

Plaintiff prisoner and his fiancée sought to marry but were unable to obtain a marriage license because the prisoner was incarcerated. Plaintiffs alleged a violation of their constitutional right to marry and sought injunctive relief, monetary damages, and attorney's fees. The United States District Court for the Southern District of Ohio at Columbus granted summary judgment in favor of defendants.

Federal Regulations

28 C.F.R. PART 551—MISCELLANEOUS

Subpart B—Marriages of Inmates

§ 551.10 Purpose and scope.

§ 551.11 Authority to approve a marriage.

§ 551.12 Eligibility to marry.

§ 551.13 Application to marry.

§ 551.14 Special circumstances.

§ 551.15 Furloughs.

§ 551.16 Marriage ceremony in the institution.

Web Sites concerning marriage

http://www.jailhouseweddings.com/

My personal web site regarding inmate marriages.

http://channel.nationalgeographic.com/channel/community/blogs/ngc/_jail-house-wedding#ixzz1OhkciX9T

National Geographic exploring Prison love.

http://www.bop.gov/

Federal bureau of prisons, see correctional manual 7300.09 chap. 5.13.7 (1999)

www.cdcr.ca.gov/regulations/adult_operations

The department of corrections, Department operations manual Article 7 – marriages page 821 & 822 (2007)

Law review articles

2007 (10) AELE MO. L.J. 301

In the monthly AELE Monthly Law journal the article covers prison marriages.

SF Gate.com

March 27, 2005 by Peter Fimrite, Michael Taylor, Chronicle Staff Writers

No shortages of women who dream of snaring a husband on Death Row / Experts ponder why deadliest criminals get so many proposals.

Related books

26 P.L.E § 4 (2007)

Pennsylvania Law Encyclopedia Statutory, Husband and wife

Frisbee 2005

Family guide to visiting California State Prisons, see chapter 6 pages 49 & 50 regarding marriage.


 

 

 

 

 

 


Citation Page

Federal and State Statutes

USCS Const. Amend. 14, § 1

23 Pa.C.S. § 1301 (2011)

CAL. FAM. CODE § 502

CAL. FAM. CODE § 426

42 U.S.C. § 1983

Federal/State Cases

Keeney v. Heath, 57 F.3d 579 (7th Cir. Ind. 1995)

Zablocki v. Redhail, 434 U.S. 374 (1978)

Safley v. Turner, 777 F.2d 1307 (8th Cir. Mo. 1985)

2004 PA Super 125; 849 A.2d 254 (2004)

Loving v. Va., 388 U.S. 1 (1967)

Pace v. Ala., 106 U.S. 583 (1883)

Toms v. Taft, 338 F.3d 519 (6th Cir. Ohio 2003)

Federal Regulations

28 C.F.R. § 551.10

28 C.F.R. § 551.11

28 C.F.R. § 551.12

28 C.F.R. § 551.13

28 C.F.R. § 551.14

28 C.F.R. § 551.15

28 C.F.R. § 551.16

Web Sites concerning marriage

http://www.jailhouseweddings.com/

http://channel.nationalgeographic.com/channel/community/blogs/ngc/_jail-house-wedding#ixzz1OhkciX9T

http://www.bop.gov/

http://www.cdcr.ca.gov/regulations/adult_operations

Law review articles

2007 (10) AELE MO. L.J. 301

SF Gate.com

Related books

26 P.L.E § 4 (2007)

Frisbee 2005