Marriage and Fundamental Constitutional Right

Anti-nepotism rules in the United States date back to the turn of the century: however, since the early 1970s, there have been numerous legal challenges to such policies and regulations. Often, the plaintiffs are professionals who have been denied employment, transferred or even dismissed because their spouses already worked for the same organization or because their spouses were promoted to supervisory positions over them. These plaintiffs contend that they have a legal right to work with their spouses, that anti-nepotism rules are discriminatory against them and that such rules violate their constitutional right to marry.
What are the legal liabilities of governmental agencies and officials in this emerging area of public personnel law? An analysis of recent federal and state court decisions revealed that most judges do not interpret anti-nepotism rules to be either discriminatory or a direct violation of a fundamental constitutional right. The kind of rule at issue does not appear to be a factor in judicial opinions. For example, federal constitutional right to marry cases cover a variety of situations, including rules against one spouse supervising the other, and policies against married couples working in the same governmental department.
Federal judges have subjected all anti-nepotism rules to only minimal scrutiny, deferring to management in virtually every instance. (1) Management Rationales for Anti-Nepotism Rules Both anti-nepotism rules and merit system regulations seek to protect the competency of the workforce, yet, paradoxically, qualified job applicants are often turned away, and valuable employees are frequently transferred or even fired because of anti-nepotism policies.

Poor performance is rarely the issue in such cases. (2) Rather, most organizations restrict married co-workers to some degree because of an assumption that the family is a potentially disruptive influence In the workplace. (3) According to Kanter, the main reason for having anti-nepotism rules is to minimize the influence of traditional familial authority structures, such as that of husband over wife, on the development and management of rational bureaucracies. 4) While such attitudes are changing among some managers, the belief persists that married individuals will bring their quarrels to work, form coalitions to advance their own interests, and in other ways undermine organizational productivity and morale. (5) One survey of university department chairs revealed a deep ambivalence about hiring faculty couples. (6) Despite criticisms by some commentators that anti-nepotism rules are anachronistic, especially for professional couples, most organizations continue to prohibit close working relationships between family members. (7)