The opinion of the court was delivered by: BARTELS
In this case we are presented with the serious question of whether the United States Merchant Marine Academy can constitutionally dismiss a cadet because he married in violation of Academy regulations and his agreement with the school. Constitutional issues being involved, it is clear that this Court has jurisdiction, see Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Krawez v. Stans, 306 F. Supp. 1230 (E.D.N.Y.1969), and there is no doubt that such jurisdiction exists without the necessity of resorting to a three-judge court, since only an administrative regulation is attacked. See, e.g., William Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S. Ct. 804, 83 L. Ed. 1189 (1939); Sardino v. Federal Reserve Bank of New York, 361 F.2d 106 (2d Cir. 1966).
Dennis O'Neill, a 26-year old midshipman, having completed two years of active duty in the United States Army, entered the United States Merchant Marine Academy in July, 1968. He would have graduated from the Academy in June of 1972 but he was dismissed on November 8, 1971 because it was discovered on November 3, 1971 that he married after he entered the Academy.
O'Neill's marriage on December 28, 1969, violated Midshipman Regulation 900.45 (1967),
U.S. Merchant Marine Academy Regulation 02120 (July 1, 1971),
and 46 C.F.R. § 310.53(c),
prohibiting marriage of any cadet before final graduation, and also violated O'Neill's contract with the Government, dated April 26, 1968, in which he agreed to remain unmarried until completion of his training.
He kept his marriage secret until November 3, 1971, when it was revealed by an anonymous telephone call to the Academy. Upon his refusal to resign as requested by the Superintendent of the Academy, O'Neill was dismissed and the dismissal was upheld by the Maritime Administrator of the Department of Commerce. Thereupon O'Neill petitioned this Court for declaratory and injunctive relief, to void the Academy regulations as an unconstitutional restriction on his right to marry, and to order his reinstatement into the Academy. On November 12, 1971, this Court temporarily ordered O'Neill then in his final year at the Academy reinstated, and defendants subsequently consented to an extension of this temporary restraining order pending final resolution of this action. Pursuant to Rule 56(b), F.R.Civ.P., 28 U.S.C., the Government moved for summary judgment on the grounds that there was no genuine issue of material fact and that as a matter of law defendants were entitled to judgment. On May 31, 1972, the motion was denied and a hearing on plaintiff's motion for a preliminary injunction was consolidated with a trial on the merits for permanent injunction and declaratory judgment.
Plaintiff attacks the regulations on many grounds, claiming that they encumber and improperly interfere with his fundamental right to marry in violation of the First, Fifth, and Fourteenth Amendments, and with his fundamental rights of privacy and association; that they deprive him of due process of law; that to the extent that they treat all married men as a class differently from all others similarly situated they deprive him of the equal protection of the laws; and finally, that the Government has failed to sustain its burden of establishing that the regulations "promote a compelling governmental interest," Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), are necessary to promote that interest, Shapiro v. Thompson, supra, at 634, 89 S. Ct. 1322, and that there is no "reasonable [way] to achieve these goals with a lesser burden on constitutionally protected activity. . . ." Dunn v. Blumstein, 405 U.S. 330, 343, 92 S. Ct. 995, 1003, 31 L. Ed. 2d 274 (1972). The Government counters with the assertion that the regulations must be granted a presumptive validity; that the only question for review is whether they bear some rational relation to any imaginable legitimate Academy purpose, see, e.g., McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); that there is, in fact, a rational connection between the regulations and a legitimate Academy purpose; that in judging this connection a more lenient standard of review must be adopted with respect to military regulations; and finally, that the plaintiff bears the burden of showing that the regulations bear no relevant relation to an Academy purpose. From these contentions two basic questions emerge: first, what is the standard of review the Court must apply to a "quasi-military regulation" which obviously encumbers the right to marry, and second, what factual connection, if any, exists between the regulation and the legitimate governmental objective of maintaining a proper academic and training program for midshipmen.
The United States Supreme Court has made it abundantly clear that the right to marry underlies the purposes of the Constitution, although not mentioned therein, and is a fundamental right afforded protection by the First, Fifth, Ninth and Fourteenth Amendments of the United States Constitution. As far back as 1923 the Supreme Court recognized the right to marry as a liberty guaranteed by the due process clause of the Fourteenth Amendment.
Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). In Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), the right to marry was again recognized as a constitutional right. There the Supreme Court invalidated as violative of the equal protection clause of the Fourteenth Amendment an Oklahoma statute providing for the sterilization of habitual criminals. Writing for the Court, Mr. Justice Douglas noted that
"We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." 316 U.S. at 541, 62 S. Ct. at 1113.
In 1967, writing for a unanimous court Chief Justice Warren in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010, struck down Virginia's anti-miscegenation statute as a violation of the Fourteenth Amendment due process and equal protection clauses, holding that
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." 388 U.S. at 12, 87 S. Ct. at 1824,
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Id.
Likewise in Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), the Supreme Court invalidated a Connecticut statute requiring the payment of a filing fee in order to bring an action for divorce. There Mr. Justice Harlan noted:
"As this Court on more than one occasion has recognized, marriage involves interests of basic importance in our society. See, e.g., Loving v. Virginia, 388 U.S. 1, [87 S. Ct. 1817] 18 L. Ed. 2d 1010 (1967); Skinner v. Oklahoma, 316 U.S. 535, [62 S. Ct. 1110] 86 L. Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923)." 401 U.S. at 376, 91 S. Ct. at 785.
In a different context, Mr. Justice Goldberg concurring in Griswold v. Connecticut, 381 U.S. 479, at 495, 85 S. Ct. 1678, at 1688, 14 L. Ed. 2d 510 (1965), observed:
"The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected."
See also United States v. Kras, 409 U.S. 434, 444, 93 S. Ct. 631, 34 L. Ed. 2d ...