THE CAPACITY TO MARRY - Columbia Law Review

This Essay identifies mechanisms by which the law regulates access to marriage for adults with intellectual disabilities, exploring how statutes and court decisions give meaning to the concept of “capacity to marry.” The Essay identifies two previously unstudied and contradictory understandings of the relationship between marriage and capacity. One notion of “capacity to marry” operates to exclude adults with intellectual disabilities from marriage based on lack of capacity. Cases grounded in this view reveal that capacity determinations can be a vessel for subjective opinions about disability and the status of marriage, considering factors such as prior romantic and sexual history, financial decision-making, and ability to care for oneself independently. These cases show how capacity requirements can prohibit or limit nonconforming individuals—especially those who rely on external sources of support—from marrying. In contrast, a second notion of capacity conceives of marriage as capacity enhancing. Under this view, a court may decline to impose a guardianship in part because of an existing marriage. This view of capacity focuses more on the power and strength of human relationships. Building on the second notion—that marital relationships can be capacity enhancing—the Essay conceives of supported decision-making as a means of rendering marriage more accessible to people with intellectual disabilities while also recasting the institution of marriage from one focused on two self-suﬃcient individuals to one that celebrates human interdependence and connection.

The full text of this Essay can be found by clicking the PDF link to the left.

* Associate Professor of Law at University of Maryland Francis King Carey School of Law. For their insights and comments, I am thankful to Alice Abrokwa, Anna Arons, Adam Blumenkrantz, Robert Dinerstein, Doron Dorfman, Stevie Glaberson, Susan Hazeldean, Julia Hernandez, Clare Huntington, Tarek Ismail, Margaret Johnson, Laura Matthews-Jolly, Jamelia Morgan, Prianka Nair, Seth Packrone, Jessica Roberts, Kate Silbaugh, Laura Lane-Steele, Michael Ashley Stein, Shanta Trivedi, and Megan S. Wright. I am grateful to the organizers of, and participants in, the Sixth Annual Roundtable on Nonmarriage and the Law, the Family Law Teachers and Scholars Conference, the AALS Disability Law Works in Progress Workshop, the NYU Clinical Writers’ Conference, the University of Maryland Faculty Workshop, the Emory Law School Faculty Colloquium, the Harvard/Yale/Stanford Junior Faculty Forum, the Care and Carcerality Conference at Wisconsin University Law School, and the AALS Family and Juvenile Law: Works-in-Progress session at the 2024 AALS Annual Meeting for their thoughtful feedback on earlier drafts. Kathryn Hennesey, Sabrina Mayor, Jacob Rocha, Caitlin Oakley, and Alison Peebles provided invaluable research assistance. I thank Ryan Costley, Saleema Ibrahim, Ryan Jarratt, Hazel Martello, Angela Zhao, Emma Ziegler, and the editors of the Columbia Law Review for their excellent editorial work.

Introduction

Tom and Lucinda Barnes—both adults with intellectual and developmental disabilities (IDD) 1 This Essay uses both “person-first” (“people with disabilities”) and “identity-first” (“disabled person”) language because the disability community has diverse views on which is preferred. In general, the person with a disability should determine whether to use person-first or identify-first language. See generally Lydia Brown, Identity-First Language, Autistic Self Advoc. Network, https://autisticadvocacy.org/about-asan/identity-first-language/ [https://perma.cc/YPE9-JF8Y] (last visited Oct. 16, 2025) (discussing arguments for and against identity-first language within the autism community and beyond). —had been married for several years when the state sought to annul their marriage. 2 This introduction recounts the story of a former client and their spouse. To preserve confidentiality, all names and some other details have been changed. See Letter from Sarah Lorr to Columbia Law Review (Jan. 28, 2026) (on file with the Columbia Law Review). Scholars make a strong case that client stories, as all human stories, belong to clients themselves and that the best practice would be for the impacted person themself to tell their story. See e.g., Rachel López, Participatory Legal Scholarship, 123 Colum. L. Rev. 1795, 1800–02 (2023) (discussing the importance of “shift[ing] power to people who are not lawyers, establishing them as experts in their own legal realities”); Binny Miller, Telling Stories About Cases and Clients: The Ethics of Narrative, 14 Geo. J. Legal Ethics 1, 4 (2000) (arguing that “clients should have a say in decisions about how their stories are told”). This Essay shares the Barneses’ story because there are so few reported cases about marriage and IDD, with the vast majority of these cases litigated, if at all, outside of public view. See infra note 12 and accompanying text. They had been living with Lucinda’s parents and raising their two children in a shared family home, when an allegation about Lucinda’s treatment of one of the children led the state to investigate the family. During a subsequent lawsuit about where and with whom the children should live, a different branch of the state acted on an anonymous tip and removed Lucinda from her home and family. Among other allegations, the state claimed that Tom and Lucinda’s marriage should be legally annulled because Lucinda’s diagnosed IDD meant she lacked capacity to consent to the marriage. After nearly a year of fighting in court, Lucinda was allowed to return home, and her marriage was left intact. Still, the intrusion into Tom and Lucinda’s intimate life caused great damage to their family.

In addition to overt state intervention in an ongoing marriage, there are other ways the state, legally appointed guardians, 3 “Guardianship is a process by which a court appoints a third party (called a ‘guardian’ or ‘conservator’) to make decisions on behalf of an individual the court has found unable to make those decisions for him or herself.” Nina A. Kohn, Legislating Supported Decision-Making, 58 Harv. J. on Legis. 313, 321 (2021). and others can deprive adults with IDD of marriage. For example, a putative or actual guardian can decide not to approve a marriage, 4 In Alabama, for example, guardians automatically have the power to consent to a marriage or divorce on behalf of an adult under guardianship, and to prevent guardians from having this authority, a court must specifically limit the guardians’ social decision-making. Sup. Ct. of Ala.’s Comm’n on Adult Guardianships & Conservatorships, Alabama Guide for Guardians and Conservators 19 (n.d.), https://alabamawings.alacourt.gov/media/1063/alabama-guide-for-guardians-and-conservators.pdf [https://perma.cc/9QBB-6XB2] (last visited Oct. 17, 2025). The same is true in Connecticut. See Conn. Gen. Stat. Ann. § 46b-20a (West 2025) (excluding people under conservatorship from the general right to marry); id. § 46b-29 (requiring conservator signature to obtain marriage license). This Essay, though primarily concerned with marriage statutes, will necessarily also address statutes that give the guardians control of marital decisions. and a court clerk can choose not to grant a license based on a person’s appearance. 5 See Kristin Booth Glen, Not Just Guardianship: Uncovering the Invisible Taxonomy of Laws, Regulations and Decisions that Limit or Deny the Right of Legal Capacity for Persons With Intellectual and Developmental Disabilities, 13 Alb. Gov’t L. Rev. 25, 55 (2020) [hereinafter Glen, Not Just Guardianship] (envisioning “a clerk denying a marriage license where one or both of the parties have [IDD] that is clearly visible, such as Down Syndrome, or cerebral palsy with significant speech impairment”). Tom and Lucinda’s experience is but one version of how the right to marry can be abridged or cut off for adults with disabilities. 6 Another central means of marriage deprivation is the so-called marriage penalty. Though not a focus of this Essay, it is explored in notes 177–181 and their accompanying text and has been addressed by other scholars. See, e.g., Gabriella Garbero, Comment, Rights Not Fundamental: Disability and the Right to Marry, 14 St. Louis U. J. Health L. & Pol’y 587, 592–95 (2021) (describing and critiquing how marriage impacts social security benefits); Rabia Belt, Disability: The Last Marriage Equality Frontier 1–3 (Stan. Pub. L. Working Paper No. 2653117, 2022),
https://ssrn.com/sol3/abstract_id =2653117 (on file with the Columbia Law Review) (describing and critiquing how the marriage penalty functions to discourage marital unions for certain people with disabilities).

For people with disabilities, the right to marry—like the right to have or raise children—is one that for generations was so unimaginable that the United States Supreme Court has almost never referenced it. 7 See Sarah H. Lorr, Disabling Families, 76 Stan. L. Rev. 1255, 1271–72 (2024) [hereinafter Lorr, Disabling Families] (describing Buck v. Bell, 274 U.S. 200 (1927), as indirectly opining on the rights of disabled adults to have and raise families). This absence is in stark contrast to marriage in other contexts, in which the Supreme Court has opined that marriage is “fundamental to the very existence and survival of the race.” 8 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); see also Obergefell v. Hodges, 576 U.S. 644, 681 (2015) (invalidating bans on same-sex marriage); Turner v. Safley, 482 U.S. 78, 81 (1987) (finding the right to marry impermissibly burdened by regulations limiting marriage for people in prison); Zablocki v. Redhail, 434 U.S. 374, 382 (1978) (finding the right to marry impermissibly burdened by a law prohibiting fathers who owed child support from marriage); Loving v. Virginia, 388 U.S. 1, 12 (1967) (striking down bans on interracial marriage).
While it is true that most other categorical bans on marriage have been rejected by the Supreme Court, some of the concerns raised in the disability context run parallel to other prior bans on, or barriers to, marriage. For example, the asserted basis for the prohibition on marriage for prison inmates at issue in Turner v. Safley—which dealt with a Missouri law preventing prison inmates from marrying unless a warden found a “compelling reason to allow the marriage”—suggests an infantilization of female inmates and their need for protection that is similar to the attitude toward people with disabilities who seek to marry. See Turner, 482 U.S. at 97–98 (including among the safety concerns that support a ban on marriage without the warden’s consent, “that female prisoners often were subject to abuse at home or were overly dependent on male figures, and that this dependence or abuse was connected to the crimes they had committed”); see also infra notes 164–166. Likewise, long before Loving overturned bans on interracial marriage, some of the arguments against marriages involving enslaved people were baldly based in what we would now identify as eugenic logic. See, e.g., Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955) (“We are unable to read . . . the Fourteenth Amendment . . . [to] prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or . . . [to] deny the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens.”). Others were based on lack of capacity. See Scott v. Raub, 14 S.E. 178, 179 (Va. 1891) (“A slave cannot marry, because he cannot make a valid contract, because the duties of a slave are inconsistent with the duties of a husband or a wife, and because a slave is property. So the marriage of a slave is a mere nullity . . . .”); see also Cumby v. Garland, 25 S.W. 673, 677 (Tex. Civ. App. 1894) (describing a marriage between two enslaved people, when achieved with consent of their enslaver, as “natural and moral, was so recognized and sanctioned, and lacked only the legal capacity of the parties to make it lawful wedlock”). The law’s failure to consider people with disabilities within the framework of the American family is consistent with the historical treatment of people with disabilities, many of whom were institutionalized and left without meaningful family relationships of any kind. 9 See, e.g., Chris Chapman, Five Centuries’ Material Reforms and Ethical Reformulations of Social Elimination, in Disability Incarcerated 25, 33 (Liat Ben-Moshe, Chris Chapman & Allison C. Carey eds., 2014) (describing “the proliferation of schools for intellectually disabled or blind pupils, asylums, and Indian Residential Schools” in the nineteenth century as part of “white ruling-class political rationality”); id. at 37 (“At the height of eugenics, some intellectually disabled people were more likely to be subjected to rehabilitative institutionalization, others to purely custodial institutionalization, and others to public torture and murder—in part due to interlocking oppressions.”). For a particularly wrenching story of one family separation, see Jennifer Senior, The Ones We Sent Away, The Atlantic (Aug. 7, 2023),
https://www.theatlantic.com/ magazine/archive/2023/09/disabled-children-institutionalization-history/674763/ (on file with the Columbia Law Review). Indeed, the denial of the right to marry is yet another denial in a line of relational deprivations that disabled adults face, including deprivations to sexual intimacy 10 See, e.g., Alexander A. Boni-Saenz, Sexuality and Incapacity, 76 Ohio St. L.J. 1201, 1213–15 (2015) [hereinafter Boni-Saenz, Sexuality and Incapacity] (describing “explicit legal and regulatory effects” as well as “expressive effects” of law that “invalidate[] the apparent consent choices of those who are deemed to lack legal capacity”); Natalie M. Chin, Group Homes as Sex Police and the Role of the Olmstead Integration Mandate, 42 N.Y.U. Rev. L. & Soc. Change 379, 413 (2018) [hereinafter Chin, Group Homes as Sex Police] (discussing how “the structural systems that are tasked with identifying and administering services to intellectually disabled individuals . . . often perpetuate the desexualization” of such adults); Natalie M. Chin, The Structural Desexualization of Disability, 124 Colum. L. Rev. 1595, 1618–20 (2024) [hereinafter Chin, Structural Desexualization] (canvassing modern laws that contribute to the “desexualization” of people with IDD); Deborah W. Denno, Sexuality, Rape, and Mental Retardation, 1997 U. Ill. L. Rev. 315, 324 (noting that a “high consent standard” in institutions “can totally prohibit sexual relations among residents”); Elizabeth F. Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1311 (2009) [hereinafter Emens, Intimate Discrimination] (“[T]he law has required intimate discrimination with regard to sex and disability.”); Jasmine E. Harris, The Role of Support in Sexual Decision-Making for People With Intellectual and Developmental Disabilities, 77 Ohio St. L.J. Furthermore 83, 86 (2016), https://kb.osu.edu/server/api/core/ bitstreams/22dd8720-12b5-5773-8387-b98a63c51926/content [https://perma.cc/GAD4-PGFT] [hereinafter Harris, The Role of Support] (describing people with “more severe intellectual and developmental disabilities” as “currently precluded from exercising sexual agency” despite potentially having “the mental capability to do so”); Jasmine E. Harris, Sexual Consent and Disability, 93 N.Y.U. L. Rev. 480, 495 (2018) (noting that for people with disabilities “sexual regulation is often a reflexive part of legitimate state regulation of some other area of their lives”). and the parent–child relationship. 11 This is well documented in the context of child welfare, also called family regulation. See, e.g., Joshua B. Kay, The Americans With Disabilities Act: Legal and Practical Applications in Child Protection Proceedings, 46 Cap. U. L. Rev. 783, 814–18 (2018) (advocating for the use of the ADA in defense of parental rights in family regulation cases); Sarah H. Lorr, Unaccommodated: How the ADA Fails Parents, 110 Calif. L. Rev. 1315, 1326–27 (2022) [hereinafter Lorr, Unaccommodated] (describing discrimination against parents with IDD in the family regulation system); Robyn M. Powell, Safeguarding the Rights of Parents With Intellectual Disabilities in Child Welfare Cases: The Convergence of Social Science and Law, 20 CUNY L. Rev. 127, 141 (2016) (describing the assumptions that undergird discrimination against parents with IDD); Charisa Smith, Making Good on an Historic Federal Precedent: Americans With Disabilities Act (ADA) Claims and the Termination of Parental Rights of Parents With Mental Disabilities, 18 Quinnipiac Health L.J. 191, 200 (2015) (“[P]arents with mental disabilities, as a disadvantaged population, are often typecast as perpetrators of child maltreatment and not offered the opportunity to find the root of the alleged maltreatment and reunify their family systems.”). It is also documented in private custody disputes. See Ella Callow, Kelly Buckland & Shannon Jones, Parents With Disabilities in the United States: Prevalence, Perspectives, and a Proposal for Legislative Change to Protect the Right to Family in the Disability Community, 17 Tex. J. on C.L. & C.R. 9, 27–28 (2011) (discussing how various court actors exhibit “a biased response to a parent’s disability” in private family law disputes involving child custody). As Professor Robyn Powell has demonstrated, these rights deprivations extend to reproductive decisions. See Robyn M. Powell, Forced to Bear, Denied to Rear: The Cruelty of Dobbs for Disabled People, 112 Geo. L.J. 1095, 1102–14 (2024) (examining reasons for high rates of unintended pregnancies among disabled people).

It is impossible to estimate how many people like Tom and Lucinda experience this kind of intrusion into their marital lives. Cases like theirs occur in different courts depending on the state, and many are litigated outside of the public eye, if at all. 12 Decisions about marital capacity—if they ever come to court—are often made in the context of guardianship proceedings, see infra section II.B., which are frequently closed from public access. See Jasmine E. Harris, Processing Disability, 64 Am. U. L. Rev. 457, 504 (2015) [hereinafter Harris, Processing Disability] (“[W]ith few exceptions, privacy considerations have de jure or de facto subsumed the public’s interests in accessing [guardianship and civil commitment] proceedings and the respondents’ interests in visibility and autonomy.”); id. at 504–14 (providing a detailed analysis of the procedural process in guardianship capacity cases). There is no source or data repository for information about the number of people with disabilities facing challenges to their capacity to marry. Indeed, it is difficult to identify even the number of people under guardianship. See Nat’l Council on Disability, Turning Rights Into Reality: How Guardianship and Alternatives Impact the Autonomy of People With Intellectual and Developmental Disabilities 41 (2019), https://www.govinfo.gov/content/ pkg/GOVPUB-Y3_D63_3-PURL-gpo121724/pdf/GOVPUB-Y3_D63_3-PURL-gpo121724.pdf [https://perma.cc/FFT3-4VSW] (“Even identifying the number of active cases or their status is not possible in many states.”). The paucity of publicly available decisions obscures the question of marriage access for people with IDD from broader scrutiny and renders it nearly impossible to know with certainty the scope of state intervention and judicial resolutions. There is evidence, however, that marriage deprivation is not uncommon. 13 See infra note 174 (listing state statutes that specifically preclude marriage for people with IDD); infra notes 248–265 and accompanying text (collecting and discussing cases).

This Essay provides critical insight into the understudied question of how the law conceives of marital capacity in the context of adults with IDD. 14 In this regard, this Essay focuses primarily on statutes controlling marriage—who is allowed to marry and under what circumstances, as well as those marriage-related laws that speak to who may have standing to challenge the legitimacy of a marriage through a legal process of annulment. See infra section II.A. This is, of course, not the only assessment of the statutes and laws related to disability and marriage. See generally Alexander A. Boni-Saenz, Personal Delegations, 78 Brook. L. Rev. 1231 (2013) (studying the role of “personal delegation” in various statutes affecting people with intellectual disabilities); Lois Guller Jacobs, Note, The Right of the Mentally Disabled to Marry: A Statutory Evaluation, 15 J. Fam. L. 463 (1976) (examining various “legal deficiencies” in marriage statutes related to individuals with disabilities). But it is unique in its critical view and study of judicial findings on capacity to marry. This Essay joins a more extensive scholarship on sexuality and intimacy. See supra note 10 (collecting articles). In every state, statutes or case law provide that the ability to marry hinges upon capacity, and many states also have statutes that provide lack of capacity as a ground to render a marriage void or voidable. 15 See infra sections II.A, II.C.1. “[V]oid marriages are void from their inception, while voidable marriages are valid unless and until one of the spouses seeks annulment.” Douglas E. Abrams, Naomi R. Cahn, Linda C. McClain, Catherine J. Ross, Kaiponanea T. Matsumura & Jessica Dixon Weaver, Contemporary Family Law 202 (6th ed. 2023). Both sets of laws leave open a pathway for a judicial determination of incapacity, rendering marriages in which one partner is a person with IDD unstable in ways that are inconsistent with the very purpose of the institution. 16 See infra sections II.A, III.A. In undertaking this analysis, this Essay bridges two bodies of scholarship: first, scholarship interrogating the function and purpose of marriage, and the government’s role in who can claim legitimacy within the American family; 17 See infra note 109 (collecting just some of this vast scholarship). and second, scholarship illuminating the marginalization of people with disabilities in intimate and family life. 18 See supra notes 10–11 (collecting scholarship).

This Essay focuses specifically on adults with IDD, as distinguished from other disabilities, because within the diverse and varied community of people with disabilities, people with IDD are among the most likely to face legal capacity challenges. 19 See Cathy E. Costanzo, Kristin Booth Glen & Anna M. Krieger, Supported Decision-Making: Lessons From Pilot Projects, 72 Syracuse L. Rev. 99, 111 (2022) (explaining how supported decision-making has primarily been used for people with IDD, given that their legal capacity is often challenged); Matthew S. Smith & Michael Ashley Stein, Legal Capacity and Persons With Disabilities’ Struggle to Reclaim Control Over Their Lives, Petrie-Flom Ctr. (Sep. 29, 2021), https://blog.petrieflom.law.harvard .edu/2021/09/29/legal-capacity-disabilities/ [https://perma.cc/T645-SCF7] (“Capacity assess-ments are sometimes weaponized to restrict persons with intellectual disabilities’ right to sexual expression. Similar capacity assessments are also deployed systematically to deprive persons with intellectual disabilities[] of their parental rights.”). Additionally, people with IDD are a diverse and complex group who present unique issues in the context of marriage-capacity decisions, distinct certainly from people with physical disabilities 20 Despite the clear distinction, the capacity to marry was still questioned in cases involving certain “physical condition[s].” See, e.g., Snyder v. Snyder, 43 Pa. D. & C. 115, 115–16 (Ct. C.P. Del. Cnty. 1941) (characterizing epilepsy as a “physical condition” and allowing annulment based on its concealment). Impotence was also a historical ground for annulment. See, e.g., Kaufman v. Kaufman, 164 F.2d 519, 520 (D.C. Cir. 1947) (“[D]irect evidence of the defendant’s impotence . . . was amply sufficient to require a judgment of annulment.”). but also from those with psychiatric- or age-related cognitive disabilities. 21 Age-related disabilities and age-related cognitive decline can be distinguished from other cognitive disabilities in various ways, not least because of the way age-related disabilities can be said to cause decisions “that the ‘real person’ would never have made; the dementia is speaking, not my father.” James Toomey, Narrative Capacity, 100 N.C. L. Rev. 1073, 1077–78 (2022); see also Morgan K. Whitlatch & Rebekah Diller, Supported Decision-Making: Potential and Challenges for Older Persons, 72 Syracuse L. Rev. 165, 184–202 (2022) (discussing, at length, the capacity issues unique to age-related disabilities). Psychiatric disabilities, due to their often-episodic nature, also present unique issues. See Kathryn E. Ringland, Jennifer Nicholas, Rachel Kornfield, Emily G. Lattie, David C. Mohr & Madhu Reddy, Understanding Mental Ill-Health as Psychosocial Disability: Implications for Assistive Technology, 2019 ASSETS 156, 161 (discussing how participants of a study described their mental health issues and the “recurrent, episodic nature”). Despite the focus on IDD, the Essay draws upon and cites related case law involving people with brain injuries, age-related cognitive decline, or psychiatric disabilities where it is instructive.

In reviewing a selection of judicial decisions related to marital capacity for adults with IDD from the last sixty years, 22 By going back to 1965, the research intends to capture the cultural and legal understandings of capacity that exist and have taken shape from the apex of the disability rights movement to the present. See Paul K. Longmore & Lauri Umansky, Introduction: Disability History: From the Margins to the Mainstream, in The New Disability History: American Perspectives 1, 10 (Paul K. Longmore & Lauri Umansky eds., 2001) (describing the passage of the Americans with Disabilities Act in 1990 as “capp[ing] a generation of innovative lawmaking regarding Americans with disabilities” and “activists’ campaign[ing]” going back to the 1960s). this Essay identifies two different and contradictory understandings of the relationship between marriage and capacity. In the first conception, courts understand capacity as a necessary prerequisite to marriage; they block people with IDD from marrying based on factors such as prior romantic and sexual history, financial decision-making, and ability to care for one’s self independently. 23 See infra section II.C.1. Courts issuing these decisions not only exclude certain individuals from normative conceptions of the family, delegitimizing and preventing intimate relationships, but also construct notions of the modern American family as an institution reserved for those who uphold certain moral standards of romantic and sexual behavior and are capable of financial and practical independence. 24 See infra sections II.C.1, III.A.

The second conception of capacity takes an almost opposite view. In the context of guardianship proceedings, 25 See infra section II.B. Guardianship, also called conservatorship in certain states, can be plenary or limited, and it has come under significant scholarly and governmental critique. See, e.g., Jasmine E. Harris, The Political Economy of Conservatorship, 71 UCLA L. Rev. 1364, 1368 (2024) [hereinafter Harris, Political Economy of Conservatorship] (“Sometimes used interchangeably with ‘guardianship,’ conservatorship is a legal device for substitute decisionmaking for a limited number of individuals deemed incapable of managing decisions about their finances or self-care.”); id. at 1390 (arguing that conservatorship has been a form of public governance to control and subjugate through the “manipulability of the legal category of disability”); Robyn M. Powell, Disability Reproductive Justice, 170 U. Pa. L. Rev. 1851, 1853–55 (2022) (critiquing the role of guardianship in the context of Britney Spears and reproductive justice); Pamela B. Teaster, Erica Wood, Sally B. Hurme & E. Carlisle Shealy, Environmental Scan of Guardianship Abuse and Fraud, Full Report (2023), https://www.ojp.gov/pdffiles1/nij/ grants/307525.pdf [https://perma.cc/9LA6-MCH5] (discussing the literature on the scope and nature of abuse and fraud by guardians). a small number of courts have found that an existing marriage is a protective and supportive relationship that can strengthen and even increase the decision-making capacity of an adult. 26 See infra section II.C.2. Significantly, this vision rests on the notion that capacity can be expanded by people and supports beyond the individual in question. 27 See infra section II.C.2. This Essay demonstrates that these two sets of cases, taken together, reveal both the extent to which capacity can bar certain nonconforming individuals from marriage and the ways marriage itself can expand notions of capacity.

Building on the idea that the marital relationship can be capacity expanding, this Essay argues that supported decision-making (SDM)—an increasingly well-recognized means of ensuring the autonomy and decision-making capacity of people with IDD—can offer a significant intervention to this field. 28 Supported decision-making is “a series of relationships, practices, arrangements, and agreements, of more or less formality and intensity, designed to assist an individual with a disability to make and communicate to others decisions about the individual’s life.” Robert D. Dinerstein, Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons With Disabilities: The Difficult Road From Guardianship to Supported Decision-Making, Hum. Rts. Brief, Winter 2012, at 8, 10; see also infra notes 78–91 and accompanying text. SDM offers a means both of expanding access to marriage for people with IDD and of recasting the institution of marriage as one that accepts and celebrates human interdependence as inherent and welcome, rather than understanding it as a problem or failure. 29 See infra sections III.C–.D. In this reformed notion of marriage, the benefits of the marital relationship could be accessible to not only those who meet society’s expectations of independence and self-sufficiency but also those who most need the support and care of the community around them. While this Essay critiques limits on the right to marry, it neither promotes nor criticizes the institution itself. 30 After all, there is strong evidence that marriage itself—and even access to marriage—is not an unalloyed good. See Katherine Franke, Wedlocked: The Perils of Marriage Equality 198 (2015) [hereinafter Franke, Wedlocked] (“[T]he gay community has been able to leverage its social capital in whiteness to their advantage in the marriage equality movement, yet African Americans have received little benefit in any endowment they might enjoy from the stereotype that all or most black people are heterosexual.”); R.A. Lenhardt, Marriage as Black Citizenship?, 66 Hastings L.J. 1317, 1319 (2015) (arguing “that the stock narrative that attends black marriage in this country is one that legal scholars and others concerned about African American citizenship and families should interrogate more deeply, if not resist”). Instead, it responds to the very real desire of certain members in the disability community to have the state sanction and recognize their choices to enter loving and supportive relationships. 31 Lori Long, a disabled woman who has publicly advocated for the right to marry her long-term, abled partner but who is now unable to marry her partner due to the steep financial penalty that would inhere, has described her desire to marry in these terms: “We are husband and wife. And it means something. It just does, that added title.” Erika Mahoney, A Love Story Worth Fighting For, Salinas Couple Battles Bureaucracy to Get Married, KAZU (Feb. 12, 2021), https://www.kazu.org/local/2021-02-12/a-love-story-worth-fighting-for-salinas-couple-battles-bureaucracy-to-get-married [https://perma.cc/TQ4L-MGVP] (internal quotation marks omitted) (quoting Lori Long). Indeed, marriage has also been described as the “ultimate merit badge.” Ralph Richard Banks, Is Marriage for White People?: How the African American Marriage Decline Affects Everyone 21 (2011) (internal quotation marks omitted) (quoting Andew Cherlin, sociologist).

Part I of this Essay defines the terms IDD and “capacity,” explaining the distinction between capacity as a mental status and capacity to marry. Next, it discusses the legal foundation and cultural meaning of marriage, focusing on the notion of a married couple as a self-sufficient unit. It also describes how disability status has interacted with the right to marry and reviews present-day barriers people with disabilities face when they seek to wed. Part II examines both the statutes and case law relating to marital capacity. It explores a selection of cases, identifying two very different ways of understanding marital capacity. Part III critiques how some judicial decisions both idealize the status of marriage and hold people with disabilities to unrealistic and unattainable standards before allowing them to marry. It proposes avenues for courts, advocates, and individuals with IDD to counter ableism in marital capacity cases. Ultimately, Part III urges courts and advocates to embrace SDM in the marital capacity context, both as a vehicle to increase access to marriage for people with IDD and to counter the normative, idealized vision of marriage as a self-sufficient unit that should not require external support.