« How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)? | Main | "Will New Bipartisan Criminal Justice Reform Plan Fly?" »

June 27, 2015

Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?

Gay Prison MarriageLots of folks a lot more invested in gay rights and broad constitutional jurisprudence likely have a lot more important things to say than I do about the Supreme Court's landmark marriage ruling in Obergefell v. Hodges.  But given that, as noted in this prior post, the Oklahoma Corrections Department halted all prison weddings while awating the Obergefell ruling, I could not resist here wondering aloud about whether prison officials will be long struggling with the reach of the ruling as the intersection of prisoner rights and the fundamental right to marry creates new and complicated administrative concerns. 

As the opinion for the Court in Obergefell mentioned, decades ago in Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court "held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry." The Obergefell ruling further mentions Turner in a notable passage that perhaps takes on extra meaning when one considers the loneliness and fear that surely accompany long-term incarceration for many prisoners:

And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U.S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14).  Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

Of course, Supreme Court jurisprudence has long explained that prisoners have greatly diminished rights (e.g., they have no reasonable expectation of privacy and thus few if any traditional Fourth Amendment rights), and that the rights they retain behind prison walls must give way to reasonable prison regulations. More specifically, in Turner, the Court expressly stated that "legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry."

Nevertheless, in Turner the Court rigorously questioned claims by Missouri officials rationales for strict limits on prisoner marriages and concluded that an "almost complete ban on the decision to marry is not reasonably related to legitimate penological objectives." Consequently, in the wake of the the Obergefell ruling, I read Turner to preclude prison officials from simply asserting, without substantial evidence, that it will never allow prisoners to have a same-sex marriage. (Notably, only one current Justice was on the Court when Turner was decided, and Justice Scalia joined the opinion for the Court authored by Justice O'Connor striking down the Missouri prison's "almost complete ban on the decision to marry.")

June 27, 2015 at 10:50 AM | Permalink


The only real issue to me that arises now is inmates wishing to marry fellow inmates. Besides this, I don't know what problem would arise. There will be in most cases ways to separate the few prisoners so affected. It might go without saying that there already are homosexual relationships in prison at this time, if unofficial and in various cases not really consensual.

Posted by: Joe | Jun 27, 2015 3:37:35 PM

This is an immediately obvious unintended consequence of lawyers who know nothing about nothing imposing their know nothing tyranny on the nation. Nuptials between prisoners, then the marital privilege not to testify against his husband. So instead of killing a witness to a crime in the prison, just marry the witness.

Posted by: Supremacy Claus | Jun 27, 2015 4:36:33 PM

Agree 100%! prisons struggle always about this issue. Just a quick note to tell you that I have a passion for the topic "prisons struggle" at hand. Thanks!

Posted by: car accidents | Oct 13, 2015 1:23:51 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB