Taxing Marriage To Fund Domestic Violence Grants – Sense Or Nonsense ?

Peter J Reilly
July 7, 2012

I’m of two minds about Jillian Jacobson’s unsuccessful class action suit against the County Clerk of Du Page County, and the Treasurer and the Attorney General of Illinois. She was suing for the five dollars extra that the Clerk charged her for a marriage license that was required by Public Act 95-711. The five bucks goes to the Married Families Domestic Violence Fund. Of course when you are suing for 5 bucks, you try to make it a class action lawsuit, which would bring in all 102 county clerks as defendants. By class action lawsuit standards, though, it would not have amounted to all that much. Over the years that I found statistics for, there tend to be around 80,000 marriages a year in Illinois. At five dollars a pop that does not add up to huge numbers.

Given what many couples, even those of modest means, spend on weddings (According to this site, which may be biased, the average couple spends over $25,000 not including the honeymoon), presumably you could make up the 5 dollars with a small cut in some other area of the wedding budget. If you are Catholic, I would ask, no beg, that you not stiff the altar boys on their tip. You have no idea how much that occaisional windfall was appreciated by the skinny kid in Fariview NJ, who used to hump 126 copies of the Hudson Dispatch around town every morning. Of course it’s not the five bucks. It is the principle of the thing:

The plaintiff’s complaint, as amended, alleged that the $5 portion of the marriage license fee that went to the Fund violated the Illinois Constitution’s guarantees of due process and equal protection as well as its tax uniformity requirement. Specifically, the complaint alleged that the $5 charge did not survive strict scrutiny for purposes of due process and equal protection for several reasons: 1) it must be paid and cannot be waived; (2) the fee is an unreasonable burden on marriage because it directly and significantly impedes one’s ability to obtain a marriage license, given that the General Assembly may raise the fee to any amount it wishes; and (3) the charge neither serves a compelling government interest nor is narrowly tailored to achieve the State’s purpose in creating the Fund.

Before I get into the lawyerly stuff, I want to show you where the money goes, but I need to mention one lawyerly thing about the program. Apparently, funding the program with a marriage license surcharge would not past constitutional muster, if it could be used to help any old victims of domestic violence. That would be funding a general welfare program with a tax on a specific class of people. The fund can only be used to fund services to people who are the victims of marital domestic violence. How do you manage that ?…

If the charge were a hundred, the Court might have made a different decision:

Although we acknowledge that the legislature may raise this fee in the future, we decline to speculate regarding how high the legislature could raise the fee before it would constitute a significant impediment to the right to marry.

In the end the Court let the tax stand:

Rather, based on the facts before us, we cannot say that a $5 fee on a marriage license constitutes a significant burden on the right to marry. Thus, we will apply the rational basis test. Applying that test, we believe that the legislature’s imposition of a small charge on marriage license applicants is reasonably related to the Fund’s narrow purpose of helping married victims of domestic violence leave violent marriages. As we find that the tax bears a rational relationship to a legitimate legislative purpose, the plaintiff’s due process claim fails.

I have not been able to discern who it is that thought taking an extra five bucks from each newly married couple to fund domestic violence programs, specifically for married people, was a good idea.  It seems like something that might occur to radical feminists and admittedly does have a certain logic to it.  I would  think that defenders of traditional marriage might find the whole thing more disturbing than allowing gay marriage, but the decision has not attracted much notice.  Hopefully, I’ll get some comments that will shed a little more light.