Prisoners' Right to Marry

The governor of New Hampshire signed legislation yesterday making same-sex marriage legal there, beginning on January 1, 2010. This brings the number of states to have done so to six — seven, if California is included. Approximately 18,000 same-sex couples were married in California before voters repealed the law permitting them by approving Proposition 8 in November, and those marriages remain valid.

Prominent attorney David Boies appeared on the Charlie Rose talk show in the evening to outline the status of a constitutional challenge to Prop. 8. He has filed the case and expects a ruling at the district court level to come possibly as early as this summer.

In laying out the rationale for an equal protection challenge to Prop. 8, Boies pointed to well established Supreme Court precedents holding that the right to marry is a fundamental right. The most widely known is still Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), striking down racial restrictions on marriage.

Another example of the right to marry as a fundamental right, Boies said, is prisoners’ right to marry. He did not get into the details of that case with Charlie Rose, but I looked it up. In Turner v. Safely, 482 U.S. 78, 107 S. Ct. 2254, 96 L.Ed2d 64 (1987), the Supreme Court upheld a prisoner’s right to marry, even if the marriage is to another prisoner. The litigation arose in a correctional facility in Missouri housing both male and female inmates.

What will happen when an inmate in a state allowing same-sex marriage wants to marry someone of the same sex? California has already given some thought to the issue, as NPR reported last summer.

To borrow a line from Dylan, The Times They Are A-Changin’