Marriage Laws and the Disabled A Comparison between the United States, ADA, UN, and Iran

Marriage, What is it? 1: the state of being united to a person of the opposite sex as husband or wife in a legal, consensual, and contractual relationship recognized and sanctioned by and dissolvable only by law

History on how laws have changed…

Eugenics First eugenic law: Indiana, 1907 First eugenic law: Indiana, 1907 Forced Sterilization was legal in 18 States, WITHOUT consent of the individual. Forced Sterilization was legal in 18 States, WITHOUT consent of the individual. “The U.S. practice of neutering ``mentally defective'' individuals was backed by most leading geneticists and often justified on grounds that it would relieve the public of the cost of caring for future generations of the mentally ill.” “The U.S. practice of neutering ``mentally defective'' individuals was backed by most leading geneticists and often justified on grounds that it would relieve the public of the cost of caring for future generations of the mentally ill.” U.S. ended its practice with eugenic laws in the 60s. U.S. ended its practice with eugenic laws in the 60s.

Why get married? Love, Religion, Starting a Family Love, Religion, Starting a Family Tax Benefits- i.e. a shared income, lower tax liability, credits for education, and dependents. Tax Benefits- i.e. a shared income, lower tax liability, credits for education, and dependents. HOWEVER, many people with disabilities lose much of their funding from their new legal status. HOWEVER, many people with disabilities lose much of their funding from their new legal status.

Marriage and the Constitution Marriage is not mentioned in the United States Constitution. Marriage is not mentioned in the United States Constitution. Amendment 14 states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” Amendment 14 states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

State Marriage Laws “When the legal capacity and consent of both parties is present, establishes their relationship as husband and wife and which is recognized by the state as a civil contract” “When the legal capacity and consent of both parties is present, establishes their relationship as husband and wife and which is recognized by the state as a civil contract”

What is Legal Capacity? What is reason? What is reason? There is no universal legal test of mental capacity or incapacity. There is no universal legal test of mental capacity or incapacity. Normally a two part test. Normally a two part test. 1. Some type of disability must be verified. 1. Some type of disability must be verified. 2. There must be a finding that the disability prevents the person from performing activities essential to take care of his or her personal needs or property. 2. There must be a finding that the disability prevents the person from performing activities essential to take care of his or her personal needs or property.

Can they or Can’t they? Depends on if the person is under guardianship Depends on if the person is under guardianship If not, then the heterosexual couple can marry. If not, then the heterosexual couple can marry. If under guardianship, the court that determined the need for the guardian must be petitioned. If under guardianship, the court that determined the need for the guardian must be petitioned. Why? Why?

Universal Declaration of Human Rights- Article 16 Men and Women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution. Men and Women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution. Marriage shall be entered into only with the free and full consent of the intending individual. Marriage shall be entered into only with the free and full consent of the intending individual.

Universal Declaration of Human Rights Continued…. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.

Marriage in Iran Marriage is a type of business contract for the selling of a woman’s body for the production of children Marriage is a type of business contract for the selling of a woman’s body for the production of children Children are often a stipulated clause of these contracts, which can be long term or temporary arrangements. Children are often a stipulated clause of these contracts, which can be long term or temporary arrangements. A dower system continues to be in effect. A dower system continues to be in effect. While Iran’s marriage law does not specifically address disability, their “dissolution” statues do.... While Iran’s marriage law does not specifically address disability, their “dissolution” statues do....

History of Law in Iran Islamic Law, constitutional law, legislation, and informed sources such as customs. Islamic Law, constitutional law, legislation, and informed sources such as customs. Applicable legislation on Marriage law comes from Iran’s Constitution, the 1989 Family Protection Act, and Iran’s Civil Code, which specifically addresses disability when discussing permissible grounds for the dissolution of a marriage. Applicable legislation on Marriage law comes from Iran’s Constitution, the 1989 Family Protection Act, and Iran’s Civil Code, which specifically addresses disability when discussing permissible grounds for the dissolution of a marriage.

The Hard Laws of Iran- the Constitution Article 10: Since the family is the most basic unit of Islamic society, all rules and regulations regarding family should serve the purpose of preservation of family and its relations based on Islamic rights and morals. Article 10: Since the family is the most basic unit of Islamic society, all rules and regulations regarding family should serve the purpose of preservation of family and its relations based on Islamic rights and morals.

1989 Family Protection Law “leaving men’s absolute rights to divorce intact but stipulating that men are required by law to provide a sound argument to the court, which the court can reject if it does not comply with sharia. The result is to give women greater power over marriage contracts.” “leaving men’s absolute rights to divorce intact but stipulating that men are required by law to provide a sound argument to the court, which the court can reject if it does not comply with sharia. The result is to give women greater power over marriage contracts.”

Women and men continue to have unequal divorce rights in Iran- men have absolute divorce rights so long as they “provide a sound argument to the court” whereas women’s divorce rights are limited to contract violations. Women and men continue to have unequal divorce rights in Iran- men have absolute divorce rights so long as they “provide a sound argument to the court” whereas women’s divorce rights are limited to contract violations.

“ Men are the protectors and maintainers of women, because Allaah has made one of them to excel the other, and because they spend from their means” [al-Nisaa 4:34] “ Men are the protectors and maintainers of women, because Allaah has made one of them to excel the other, and because they spend from their means” [al-Nisaa 4:34]

What Iran’s “Dissolution Laws” mean for people with disabilities Civil Code: “any physical defect, in husband or wife, is legal grounds for claiming dissolution…” Civil Code: “any physical defect, in husband or wife, is legal grounds for claiming dissolution…” “proven insanity of either spouse; the husband’s castration or inability to consummate marriage; defect of the wife interfering with conjugal relations or her total blindness, contracting leprosy or becoming seriously crippled if they existed at time of contract …” “proven insanity of either spouse; the husband’s castration or inability to consummate marriage; defect of the wife interfering with conjugal relations or her total blindness, contracting leprosy or becoming seriously crippled if they existed at time of contract …”

Dissolution continued… This law makes it clear that mental and physical disabilities are grounds for claiming the dissolution of a marriage in Iran This law makes it clear that mental and physical disabilities are grounds for claiming the dissolution of a marriage in Iran

The Civil Code and Disability- implied soft law A physically disabled man from a wealthy family, so long as he can consummate the marriage, can purchase a wife and procreate legally. A physically disabled man from a wealthy family, so long as he can consummate the marriage, can purchase a wife and procreate legally. A man can buy immunity from this stipulation. A man can buy immunity from this stipulation. The social role assigned to women within Islam would make a similar arrangement for a disabled woman unlikely. The social role assigned to women within Islam would make a similar arrangement for a disabled woman unlikely.

Defining Disability Inability to fulfill social role (providing for family, spouse) Inability to fulfill social role (providing for family, spouse) Social class (status, money) Social class (status, money) Gender Gender

Case Examples The Epileptic Wife The Epileptic Wife The boy with Cerebral Palsy The boy with Cerebral Palsy

Iran’s Marriage Law vs. Marriage Law in the United States Rights/Responsibilities of Men and Women Rights/Responsibilities of Men and Women Dissolution based on disability Dissolution based on disability Protection against Discrimination Protection against Discrimination Abortion Abortion

Iran and the UN Declaration of Human Rights- Article 16 ALL Men and Women vs. the inequality of Men and Women ALL Men and Women vs. the inequality of Men and Women Equal Access to the Contract vs. Status Equal Access to the Contract vs. Status Negative Paradigm of people with disabilities and marriage Negative Paradigm of people with disabilities and marriage Consent Consent

US and the UN Declaration of Human Rights The current hard law holds true The current hard law holds true Men and Women receive equal rights under the contract of marriage Men and Women receive equal rights under the contract of marriage Both parties must have full consent upon entering the agreement Both parties must have full consent upon entering the agreement

Conclusion Hard law does not necessarily indicate social policy Hard law does not necessarily indicate social policy Between a man and a woman Between a man and a woman Full legal capacity Full legal capacity Civil Contract Civil Contract Family and children are procured Family and children are procured