Marriage Laws: Congress' Legislative Powers Explored

The United States Constitution grants Congress little direct authority to legislate in the field of domestic relations. However, between 1917 and 2001, 33 constitutional amendments were proposed to give Congress authority to legislate on marriage and divorce questions. In addition, 12 bills were introduced during this period to provide for uniform marriage and divorce laws throughout the United States. This report discusses the extent to which Congress is constitutionally authorised to legislate on family law questions, and includes examples of present laws utilising the various approaches available in this area.

Congress's authority to legislate on marriage and divorce

Congress has little direct authority to legislate on marriage and divorce. The primary authority and responsibility to legislate in the domestic relations arena lies with individual states. However, between 1917 and 2001, 33 constitutional amendments were proposed to give Congress authority to legislate on marriage and divorce questions. In addition, 12 bills were introduced during this period to provide for uniform marriage and divorce laws throughout the United States.

The Fourteenth Amendment's Due Process Clause has a substantive component which "provides heightened protection against government interference with certain fundamental rights and liberty interests". This includes parents' fundamental rights to make decisions concerning the care, custody, and control of their children. Although the Constitution does not specifically mention a fundamental right to privacy, courts recognise this right to encompass marriage, procreation, and interpersonal relations.

Congress continues to utilise a number of indirect approaches to enact numerous federal laws that impact family law questions.

The First Amendment: Congress shall make no law respecting an establishment of religion

Congress has little direct authority to legislate on marriage and divorce questions. The primary authority and responsibility to legislate in the domestic relations arena lies with individual states. However, between 1917 and 2001, 33 constitutional amendments were proposed to give Congress authority to legislate on marriage and divorce questions. In addition, 12 bills were introduced during this period to provide for uniform marriage and divorce laws throughout the United States.

The First Amendment states that Congress shall make no law respecting an establishment of religion. This means that Congress cannot pass laws that establish an official religion or prefer one religion over another. It also protects the free exercise of religion, meaning that Congress cannot prohibit people from practising their religion.

The Fifth Amendment also includes protections for due process, stating that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces.

The Fourteenth Amendment's Due Process Clause provides heightened protection against government interference with certain fundamental rights and liberty interests, including parents' fundamental rights to make decisions concerning the care, custody, and control of their children. Courts recognise a fundamental right to privacy that encompasses marriage, procreation, and interpersonal relations.

The Fourteenth Amendment's Due Process Clause

Between 1917 and 2001, 33 constitutional amendments were proposed to give Congress authority to legislate on marriage and divorce questions. Eleven of the proposed constitutional amendments and all of the implementing bills introduced in the Senate were sponsored by Senator Arthur Caper. The text of his proposed amendments uniformly stated: "The Congress shall have power to make laws, which shall be uniform throughout the United States, on marriage and divorce, the legitimisation of children, and the care and custody of children affected by annulment of marriage or by divorce".

However, under the United States Constitution, Congress has little direct authority to legislate in the field of domestic relations. The primary authority and responsibility to legislate in the domestic relations arena lies with the individual states. The rationale behind this approach is the lack of overriding national considerations in the family law area. Nevertheless, states' freedom to legislate has led to substantial variation between the individual states on many topics, including incidents of marriage, divorce and child welfare. As such, Congress continues to utilise a number of indirect approaches to enact numerous federal laws that impact family law questions.

The Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury

The Fifth Amendment to the United States Constitution includes the Grand Jury Clause, which states:

> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.

This clause ensures that serious federal charges cannot be brought without the approval of a grand jury, providing a preliminary check on prosecutorial power. The grand jury's primary function is to decide whether there is sufficient evidence to indict an individual and proceed to trial. This differs from trial juries, which determine guilt or innocence.

Between 1917 and 2001, 33 constitutional amendments were proposed to give Congress authority to legislate on marriage and divorce questions. However, under the United States Constitution, Congress has little direct authority to legislate in the field of domestic relations. The primary authority and responsibility to legislate in the domestic relations arena lies with the individual states. The Fourteenth Amendment's Due Process Clause has a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests, including parents' fundamental rights to make decisions concerning the care, custody, and control of their children.

States' freedom to legislate on marriage

Under the United States Constitution, Congress has little direct authority to legislate in the field of domestic relations. The primary authority and responsibility to legislate in the domestic relations arena lies with the individual states. This is because there is a lack of overriding national considerations in the family law area. However, this freedom has led to substantial variation between the individual states on many topics, including incidents of marriage, divorce and child welfare.

Between 1917 and 2001, 33 constitutional amendments were proposed to give Congress authority to legislate on marriage and divorce questions. In addition, 12 bills were introduced during this period to provide for uniform marriage and divorce laws throughout the United States. Eleven of the proposed constitutional amendments and all of the implementing bills introduced in the Senate were sponsored by Senator Arthur Caper. The text of his proposed amendments uniformly stated:

> The Congress shall have power to make laws, which shall be uniform throughout the United States, on marriage and divorce, the legitimization of children, and the care and custody of children affected by annulment of marriage or by divorce.

Despite the lack of direct authority, Congress continues to utilise a number of indirect approaches to enact numerous federal laws which impact family law questions. There are also generally applicable constitutional principles which limit the authority of all governmental entities (federal, state, and local) to legislate on family law questions. The Fourteenth Amendment's Due Process Clause has a substantive component which "provides heightened protection against government interference with certain fundamental rights and liberty interests," including parents' fundamental rights to make decisions concerning the care, custody, and control of their children.

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