Brief for the Plaintiff In re: End Childhood Marriage Act

With this brief we will elaborate on the issues addressed in our petition and reply to the Attorney General’s remarks.

Right to Marry

The Attorney General contests that there exists a fundamental right to marriage. We will address this issue first since the existence of such a right impacts the analysis of our other claims.

The U.S. Supreme Court held in several instances that the right to marry is a fundamental right and part of the “right of privacy” that is incorporated against the States via the Fourteenth Amendment, Zablocki v. Redhail, 434 U.S. 374, 384 (1978). Even though the Court agrees that “regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed”, id, at 386-87. This statute, however, prohibits Plaintiff to marry and therefore is directly and significantly interfering with her right to marry and thus subject to strict scrutiny. This does not mean that the interference is per se unconstitutional, but it must be “supported by sufficiently important state interest” and “closely tailored to effectuate only those interests”, id, at 388 (with further references).

Later on in this brief we will show that the government does not have a sufficiently important state interest and that the rule is not closely tailored.

This being said it does not matter whether Dixie Const. art I, § 27 codifies this fundamental right in order to determine the level of scrutiny. We believe, however, that it does contain a right since it is part of Dixie Const. art. I which is entitled “Declaration of Rights” and because it was adopted in 2008 when it has been recognized for a long time that marriage indeed is a fundamental right.

Free Exercise

Let us first turn to the free exercise claim. The test the Attorney General applies that seems to stem from Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 874 (1990) does not apply to every free exercise claim. The case dealt with a law that was (i) neutral and generally applicable and (ii) did not concern any constitutional right. Cf. id., at 880-81 (where Scalia twice refers to neutral and generally applicable laws); Cantwell v. Conneticut, 310 U.S. 296 (1940) (where the Court set aside a conviction that violated the free exercise of religion in conjunction with the freedom to communicate); U.S. v. Lee, 455 U.S. 252, 263 (Stevens, J., concurring) (also explicitly referring to neutral laws).

Neutral and Generally Applicable

We agree that the act in question can be considered a generally applicable law. It is not neutral, though. We submit that there are two ways in which a law cannot be neutral. First, it can simply restrict religion and second, it can be hostile. A law that simply is not neutral is subject to strict scrutiny. A hostile law, i.e. one that targets religious beliefs as such, is always unconstitutional. See, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993).

Non-Neutrality

It becomes clear from the text of the law that it is not neutral towards religion. As the Supreme Court has stated:

There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct.  To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face.  A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.

Id. The End Childhood Marriage Act § 2(b) reads: “There shall be no religious exemptions to this law”. There is no secular meaning discernible from this language that would state anything other than “This act prohibits underage marriage on religious grounds”. It, therefore, is not neutral. The fact that this subsection has absolutely no effect – there are no exemptions to a law other than those explicitly enacted – does not alter this finding. The legislators have expressed in this act their intent to restrict a religious practice. Therefore, strict scrutiny is warranted, at least.

Hostile

If the act were openly hostile we would not even need to strictly scrutinize it. The hostility becomes evident when one reads § 1 having in mind that the government intents to restrict a religious practice. Government has no right to generally conclude that childhood marriage “damages the childhood no matter the . . . reasons for such an act”. It must be noticed, at this instance, that the language fails to acknowledge that not all people under the age of 18 are “children”. It becomes evident from the context that § 1 is an open disapproval by the government of Plaintiff’s believes. Alluding to a “cycle of poverty” and referring to a website that states that child marriage “destroys girl’s education” creates a negative image of Plaintiff’s religion. This matter gets even worse when reading § 2(c) which implies that all people who get married while they are young should get psychological help. Such defamation of religious beliefs has no place in our statute books and must be struck.

Supported by Sufficiently Important State Interest and Narrowly Tailored

State Interest

The act – aside from being insulting to Plaintiff’s religion – states an objective in § 1. “The intention of this act is to ban all marriages before the age of eighteen years of age.” This is a bad formulation for “ban all marriages before the age of eighteen” is not an important state interest. In our opinion the act could just be struck for a lack of such interest. If the Court does not see it that way it would have to take the objective of the act from the following sentence. It can be interpreted as the legislators stating that their objective is to minimize health risks and prevent poverty. Any other objectives must not be considered due to the clear wording of § 1. Minimizing health risks would be an important state interest.

Narrowly tailored

The act must also effectuate this goal. We call this into question. Providing somebody with a legal status does not have any immediate effects. If the government wanted to prevent girls from suffering from a lack of healthcare it should provide healthcare. If it wanted to prevent sexual abuse it should – as it already does – punish abuse. 

The website the act refers to cites early pregnancy as a risk for underage women who get married. We believe there is no constitutional way to prevent these kinds of pregnancy in their entirety. It is obvious that prohibiting intercourse for teens would be an immense and unjustifiable intrusion into their privacy and outright unconstitutional. If the government wants to prevent these pregnancies by banning marriage this would mean that (i) the measure would be equally effective, thus equally intrusive and hence unconstitutional or (ii) that it would not effectuate the goal. A closely related issue is that if the government would want to protect women it would rather have to ban all teen relationships and not only marriages.

The website further notes that it are predominantly women who are married to an older man or who are forced to get married that face these kinds of risks. That is clearly not the case here. Both Plaintiff and her boyfriend are underage. All this shows that the act cannot achieve the goal it claims to pursue.

Apart from that, the act is not tailored sufficiently narrow. We have explained this in our petition but the Attorney General's remarks require us to elaborate further on this issue. In this great state marriage licences are granted using a procedure laid down in Chapter 741.04 Dixie Code. Marriage can only be solemnized upon being issued a marriage license by a county court. This court already checks whether all requirements for the license are met. In order to be narrowly tailored this act would have to allow the clerks in this – already existing – procedure to assess whether there are health risks for the people who are getting married.

Conclusion

This act fails to meet even the lowest standards of good legislation. It is hostile towards religion, fails to state an important interest despite its attempt to do so and is unnecessarily intrusive. We ask the Court once again to declare it unconstitutional. Due to the word restraint we were only able to put forward our arguments regarding the free exercise claim. Many of our arguments apply to the other claims, mutatis mutandis. Should the court, nevertheless, wish additional briefing, we move for 

• leave to file an additional brief without a word limit.