Love Lessons: Can the government teach people how to be married?

A proposed ballot initiative in Colorado would require couples looking to tie the knot to undergo premarital counseling before the big day.

Photo by Eric Ward

Couples planning a wedding have many choices to make—the dress, the venue, the flowers, the cake—the list goes on and on.  If a proposed initiative lands on ballots and is passed in November, Colorado brides and grooms-to-be will need to add selecting a premarital counselor to their to-do list.

The initiative, titled the Colorado Marriage Education Act and sponsored by California-based Kids Against Divorce (KAD), would require engaged couples to participate in ten hours of premarital education before getting married.  The requirement increases to twenty hours for someone with one previous divorce and thirty hours for someone with two or more dissolved marriages.  Couples looking to enter into a civil union will not be required to attend the classes.

Couples who participated in premarital counseling sessions measured “significantly better in relationship skills and relationship quality” than couples in control groups.

Bill proponents Sharon Tekolian and KAD founder David Schel have presented the initiative as a way to increase the number of successful marriages and decrease costs to taxpayers.  Schel points to a 2008 study (pdf) by Georgia College & State University professor Benjamin Scafidi, which estimated that taxpayers spend $112 billion on costs associated with divorce and unwed childbearing.  The study estimated that taxpayers in Colorado spend $454 million annually on these expenses, including forgone tax revenue, court costs, and welfare programs.

The group believes that one of the best ways to reduce divorce rates is to make premarital counseling mandatory, not only in Colorado but across the country, as well. Studies suggest that premarital counseling does in fact strengthen relationships.  A 2003 review of thirteen studies on premarital counseling techniques found that in twelve of the studies, couples who participated in premarital counseling sessions measured “significantly better in relationship skills and relationship quality” than couples in control groups.

The Institute for Research and Evaluation’s 2004 analysis (pdf) of the Marriage Savers program produced similar results.  The clergy-led program requires couples to undergo at least four months of “rigorous marriage preparation” before taking the plunge.  Once married, couples must go on an annual retreat to “renew” their marriage.  Troubled couples are paired with a mentor couple to help them navigate difficult areas, and couples who separate go through a course aimed at reconciliation.  The Institute’s analysis found that counties with a Marriage Savers program in place saw a 17.5 percent decline in the number of divorces over a seven-year period, while similar counties without the program saw only a 9.4 percent decrease.

Despite all of the evidence suggesting the benefits of such counseling, a blanket mandatory premarital counseling requirement has a heavy constitutional burden to meet.

Recognizing the benefits of premarital counseling, a handful of states currently require such counseling under certain circumstances.  Arizona and California require premarital counseling only for minors who are seeking to marry.  Minors in Utah must also complete counseling, but a judge may waive the requirement “if premarital counseling is not reasonably available.”

Arkansas (subscription)Arizona, and Louisiana allow couples to choose to oblige themselves to complete premarital counseling by entering into a “covenant marriage.”  In addition to the premarital requirements, the process to dissolve a covenant marriage is also more complex.  For example, in Louisiana a couple in a covenant marriage must go to marriage counseling and live separately for six months before filing for divorce.  A divorce will be granted only in the event of adultery, abandonment, abuse of a spouse or child, or if the couple has been living apart for at least two years; requirements change if the couple was legally separated prior to filing.  Covenant marriage has been generally unpopular, with only 600 out of approximately 120,000 marriages total performed in Arkansas in the form’s first three years of existence.

While these limited forms of mandatory premarital counseling have been implemented successfully, Colorado would be the first state to mandate premarital counseling for all couples if the initiative becomes law.  State legislatures in Indiana and Mississippi tried and failed to enact (pdf) a similar requirement in 1996.  Despite all of the evidence suggesting the benefits of such counseling, however, a blanket mandatory premarital counseling requirement has a heavy constitutional burden to meet.

The first U.S. Supreme Court decision to address a constitutional right to marriage was Loving v. Virginia in 1967.  Chief Justice Earl Warren wrote in the unanimous opinion that Virginia’s law banning interracial marriages violated the Due Process Clause of the Fourteenth Amendment because it interfered with “the freedom to marry.”

Less than a decade later, in Zablocki v. Redhail, the Court struck down a Wisconsin statute that denied marriage licenses to individuals who had failed to meet obligations to pay for the support of a child from a previous relationship.  In the majority opinion, Justice Thurgood Marshall repeatedly stated that marriage is a fundamental right protected by the Fourteenth Amendment.  A state law that infringes upon a fundamental right is permissible only if the law advances a compelling state interest and is narrowly tailored to serve that interest.

Opponents of the initiative suggest that it infringes upon “the freedom to marry” because of its adverse affect on poorer couples.  Couples will have to pay for the counseling sessions – the price of which are yet to be determined – in addition to the $30 marriage license fee.  Many couples will have to miss work in order to attend the necessary number of sessions, causing them to lose wages.  Even couples who are doing well financially may find the requirement repugnant, simply because they feel that counseling is unnecessary.

Supporters of mandatory marriage counseling believe that the inconvenience of taking a class does not rise to the level of unconstitutional infringement.  They further argue that the counseling requirement is rationally related to a compelling state interest in reducing divorce rates.  Not only does counseling lower the divorce rate and save the state money, but it creates healthier and happier families.

Many states have found ways to encourage couples to undergo premarital counseling without imposing a mandatory requirement.

Though the counseling requirement may be rationally related to a compelling state interest, it likely fails to pass strict scrutiny because it is not narrowly tailored to serve that interest.  Many states have found ways to encourage couples to undergo premarital counseling without imposing a mandatory requirement.

Couples in South Carolina get a one-time $150 state income tax credit if they complete a premarital counseling course prior to getting married.  In FloridaMinnesotaOklahomaTennessee, and certain counties in Maryland, couples can have the cost of their marriage license reduced if they provide proof of premarital counseling.  Lawmakers in Georgia have eliminated the state marriage license fee for couples who complete premarital counseling.  The laws in Texas are especially designed to encourage counseling.  Not only are the state marriage license fee and waiting period eliminated for couples completing counseling, but the state offers free counseling through its Twogether in Texas (pdf) program.

In light of the concerns surrounding the initiative, KAD withdrew it on January 27, 2014.

In addition to the constitutional concerns, there are many more issues which a mandatory premarital counseling law needs to address.  If such a law was enacted, would out-of-state citizens planning on marrying in the state also be required to present proof of premarital counseling before a marriage license was issued?  Could exceptions be made for those who would find it difficult to attend classes, such as active duty military personnel, inmates, and people who are seriously ill?  Would individuals who were granted a divorce for a traditional reason, such as adultery or abuse, still be subject to the increased time requirement if they seek to marry again?  Would a couple be excused from the requirement if they are already in a common law marriage?  This question is of particular importance in Colorado where creating a common law marriage is as simple as a couple mutually agreeing to live as husband and wife and assuming a marital relationship.

In light of the concerns surrounding the initiative, KAD withdrew it on January 27, 2014.  The group plans to resubmit the proposal, taking into account suggestions provided in a Comment & Review Letter from Colorado Legislative Council staff.  After resubmission, the petition must get 86,105 signatures before August 4 in order to get on the ballot.  Voting will take place on Election Day, November 4.


Avatar photo
About Katherine Doering Custis, Editor-in-Chief Emeritus (19 Articles)
Katherine Doering Custis served as the Editor-in-Chief of the Campbell Law Observer during the 2014-2015 school year. Katherine holds a Bachelor of Arts in Political Science and a Master of Public Administration from North Carolina State University. She has worked with the North Carolina National Guard, Office of the Staff Judge Advocate; North Carolina Administrative Office of the Courts, Research and Planning Division; City of Raleigh, City Attorney's Office; North Carolina General Assembly, Research Division, and Hon. James C. Hudson, Supervising Judge of Suffolk County (NY) Court. She is a native of Southold, NY and now resides in Knightdale, NC. Katherine graduated from Campbell Law School in May 2015.
Contact: Email