Webmaster's Note: It is ironic to note that in a day and age where homosexuals are fighting tooth and nail to be recognized by our government, Christians are beginning a great exodus. We are beginning to realize that we don't need governments stamp of approval on our marriage. To do so, only invites a 3rd party into our sacred union. And then there are the issues of whether or not the fruits of the marriage (children) are now state property. The articles below are the first of the essays that will address these issues. (Note: These authors are not in any way affiliated with The Church of the Holy Word.)
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Should "Marriage" Even Be Defined in Secular Law? Five Reasons Why Christians Should
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Should "Marriage" Even Be Defined in Secular Law?by Virgil CooperAbout 15 years ago, my former wife of 26-1/2 years, filed for divorce. We had seven children, five daughters and two sons. Our youngest at the time, our second son, was five years old. At the time, I prepared a counterclaim to the Petition for Dissolution her attorney filed in Domestic Relations (DR) court. I met one afternoon with the head of the Maricopa County Superior Court, Marriage License Bureau, in downtown Phoenix. The marriage license bureau was headed by a young woman of about age 25. I asked her to explain to me the general and statutory implications of the marriage license. She was very cooperative, and called in an Assistant, a tall Black man who at the time was working on an Operations Manual for internal departmental use. She deferred for most technical explanations to her Assistant. He walked through the technicalities of the marriage license as it operates in Arizona. He mentioned that marriage licensing is pretty much the same in the other states -- but there are differences. One significant difference he mentioned was that Arizona is one of eight western states that are Community Property states. The other states are Common Law states, including Utah, with the exception of Louisiana which is a Napoleonic Code state. He then explained some of the technicalities of the marriage license. He said, first of all, the marriage license is Secular Contract between the parties and the State. The State is the principal party in that Secular Contract. The husband and wife are secondary or inferior parties. The Secular Contract is a three-way contract between the State, as Principal, and the husband and wife as the other two legs of the Contract. He said, in the traditional sense a marriage is a covenant between the husband and wife and God. But in the Secular Contract with the state, reference to God is a dotted line, and not officially considered included in the Secular Contract at all. He said, if the husband and wife wish to include God as a party in their marriage, that is a "dotted line" they will have to add in their own minds. The state's marriage license is "strictly secular," he said. He said further, that what he meant by the relationship to God being a "dotted line" meant that the State regards any mention of God as irrelevant, even meaningless. In his description of the marriage license contract, the related one other "dotted line." He said in the traditional religious context, marriage was a covenant between the husband and wife and God with husband and wife joined as one. This is not the case in the secular realm of the state's marriage license contract. The State is the Principal or dominant party. The husband and wife are merely contractually "joined" as business partners, not in any religious union. They may even be considered, he said, connected to each other by another "dotted line." The picture he was trying to "paint" was that of a triangle with the State at the top and a solid line extending from the apex, the State, down the left side to the husband, and a separate solid line extending down the right side to the wife, a "dotted line" merely showing that they consider themselves to have entered into a religious union of some sort that is irrelevant to the State. He further mentioned that this "religious overtone" is recognized by the State by requiring that the marriage must be solemnized either by a state official or by a minister of religion that has been "deputized" by the State to perform the marriage ceremony and make a return of the signed and executed marriage license to the State. Again, he emphasized that marriage is a strictly secular relationship so far as the State is concerned and because it is looked upon as a "privileged business enterprise" various tax advantages and other political privileges have become attached to the marriage license contract that have nothing at all to do with marriage as a religious covenant or bond between God and a man and a woman. By way of reference, if you would like to read a legal treatise on marriage, one of the best is "Principles of Community Property," by William Defuniak. At the outset, he explains that Community Property law descends from Roman Civil Law through the Spanish Codes, 600 A.D., written by the Spanish jurisconsults. In the civil law, the marriage is considered to be a for-profit venture or profit-making venture (even though it may never actually produce a profit in operation)and as the wife goes out to the local market to purchase food stuffs and other supplies for the marriage household, she is replenishing the stocks of the business. To restate: In the civil law, the marriage is considered to be a business venture, that is, a for-profit business venture. Moreover, as children come into the marriage household, the business venture is considered to have "borne fruit." Now, back to the explanation by the Maricopa County Superior Court, Marriage Bureau's administrative Assistant. He went on to explain that every contract must have consideration. The State offers consideration in the form of the actual license itself -- the piece of paper, the Certificate of Marriage. The other part of consideration by the State is "the privilege to be regulated by statute." He added that this privilege to be regulated by statute includes all related statutes, and all court cases as they are ruled on by the courts, and all statutes and regulations into the future in the years following the commencement of the marriage. He said in a way the marriage license contract is a dynamic or flexible, ever-changing contract as time goes along -- even though the husband and wife didn't realize that. My thought on this is can it really be considered a true contract as one becomes aware of the failure by the State to make full disclosure of the terms and conditions. A contract must be entered into knowingly, intelligently, intentionally, and with fully informed consent. Otherwise, technically there is no contract. Another way to look as the marriage license contract with the State is as a contract of adhesion, a contract between two disparate, unequal parties. Again, a flawed "contract." Such a contract with the State is said to be a "specific performance" contract as to the privileges, duties and responsibilities that attach. Consideration on the part of the husband and wife is the actual fee paid and the implied agreement to be subject to the state's statutes, rules, and regulations and all court cases ruled on related to marriage law, family law, children, and property. He emphasized that this contractual consideration by the bride and groom places them in a definite and defined- by-law position inferior and subject to the State. He commented that very few people realize this. He also said that it is very important to understand that children born to the marriage are considered by law as "the contract bearing fruit" -- meaning the children primarily belong to the State, even though the law never comes out and says so in so many words. In this regard, children born to the contract regarded as "the contract bearing fruit," he said it is vitally important for parents to understand two doctrines that became established in the United States during the 1930s. The first is the Doctrine of Parens Patriae. The second is the Doctrine of In Loco Parentis. Parens Patriae means literally "the parent of the country"or to state it more bluntly -- the State is the undisclosed true parent. Along this line, a 1930s Arizona Supreme Court case states that parents have no property right in their children, and have custody of their children during good behavior at the sufferance of the State. This means that parents may raise their children and maintain custody of their children as long as they don't offend the State, but if they in some manner displease the State, the State can step in at any time and exercise its superior status and take custody and control of its children -- the parents are only conditional caretakers. He also added a few more technical details. The marriage license is an ongoing contractual relationship with the State. Technically, the marriage license is a business license allowing the husband and wife, in the name of the marriage, to enter into contracts with third parties and contract mortgages and debts. They can get car loans, home mortgages, and installment debts in the name of the marriage because it is not only a secular enterprise, but it is looked upon by the State as a privileged business enterprise as well as a for-profit business enterprise. The marriage contract acquires property throughout its existence and over time, it is hoped, increases in value. Also, the marriage contract "bears fruit" by adding children. If sometime later, the marriage fails, and a "divorce" results the contract continues in existence. The "divorce" is merely a contractual dissolution or amendment of the terms and conditions of the contract. Jurisdiction of the State over the marriage, over the husband and wife, now separated, continues and continues over all aspects of the marriage, over marital property and over children brought into the marriage. That is why family law and the Domestic Relations court calls "divorce" a dissolution of the marriage because the contract continues in operation but in amended or modified form. He also pointed out that the marriage license contract is one of the strongest, most binding contractual relationships the States has on people At the end of our hour-long meeting, I somewhat humorously asked if other people had come in and asked the questions I was asking? The Assistant replied that in the several years he had worked there, he was not aware of anyone else asking these questions. He added that he was very glad to see someone interested in the legal implications of the marriage license and the contractual relationship it creates with the State. His boss, the young woman Marriage Bureau department head stated, "You have to understand that people who come in here to get a marriage license are in heat. The last thing they want to know is technical, legal and statutory implications of the marriage license." (Laughter) I hope this is helpful information to anyone interested in getting more familiar with the contractual implications of the marriage license. The marriage license as we know it didn't come into existence until after the Civil War and didn't become standard practice in all the states until after 1900, becoming firmly established by 1920. In effect, the states or governments appropriated or usurped control of marriages in secular form and in the process declared Common Law applicable to marriages "abrogated." Best regards from Virgil Cooper |
Common Law MarriageThere is much confusion about common law marriage. Some believe it to be the manner in which God intended a Man and Woman to be married; others believe it to be nothing more than "shacking up" covered by dubious veneer of respectability. So what is the truth? In order to find the truth, we must look at the origins of common law marriage as well as the manner of its use over the past few centuries. It should be remembered that Men and Women have been getting married for at least 5,000 years, and that government laws concerning marriage are a relatively new event. Most people today see "common law marriage" as a noun. In other words, it is a singular thing. That perception is inaccurate. It is only "marriage" that is the noun. "Common law" is merely a system of law that certain marriages utilize. Today's commonly accepted method of marriage is to acquire a government marriage license. Such marriages may rightly be called a "statutory marriage" because it is the system of "statutory law" that this type of marriage utilizes. As we stated earlier, marriages have been taking place since the beginning of time, and historical records show that they were already in existence at the beginning of written history. As society progressed, and its legal systems matured, questions arose as to what really constituted a marriage. These questions originally revolved around issues such as inheritance and the status of children as bastards. Over time, the "common law of England" (from which America derived its common law) began to develop legal boundaries that expressed society's view of what constituted a marriage. The common law does not so much "control" the act of getting married, or "establish" a marriage, as it sets out the markers that can be used to determine whether a man and woman are in fact married, or whether they are simply using the word "married" without the existence of any of the fundamental elements being present that society understands to accompany a true marriage. In short, common law does not operate upon a marriage unless or until the validity of a marriage is challenged in court. At that time, the court will use the common law standards that have evolved to decide if the alleged marriage was truly established as such. What's Legally Valid and What's Not? When examining a legal question, it is customary to lay foundation and then come to the final conclusive point. However, we believe that in this instance it is best to state the conclusive legal reality of common law marriage first and then investigate the particulars. Here is the holding from the decision of the Supreme Court of the United States in Meister vs. Moore, 96 US 76 (1877): "As before remarked, the statutes are held merely directory; because marriage is a thing of common right..." [emphasis added] Directory - A provision in a statute, rule of procedure, or the like, which is a mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision, which must be followed. Black's Law Dictionary, 6th Ed. The statutes to which the Court was referring were statutes in Massachusetts and Michigan that purported to render invalid marriages not entered into under the term of written [statutory] state law. While the various state courts have prattled on for almost 200 years about what the laws of their states do and do not allow concerning marriage, the US Supreme Court cut straight to the heart of the issue in declaring that statutes controlling marriage can only be directory because marriage is a common right, which is not subject to interference or regulation by government. Or phrased another way, the God-given right to marry existed prior to the creation of the states or the national government, and therefore it is beyond their purview to alter, modify, abolish, or interfere with, such a right. In its decision in Meister, the Court refused to even examine the numerous state court decisions prior to making its own decision. While this was assailed by legal commentators of the day as an egregious choice, we can only agree with the Court in its choice because a state court opinion has no authority to affect a fundamental right that existed antecedent to the formation of the state. It should be noted that Meister has never been reversed and is still controlling case law concerning the fundamental right to marry without state interference. "Recognized" versus "Unlawful" A lot of Americans hold the incorrect perception that common law marriage is unlawful. Nothing could be further from the truth. There is no state law anywhere that claims to make common law marriage "unlawful". Given the decision in Meister, such a law could not withstand the scrutiny of the US Supreme Court. And of course the exercise of a fundamental right is always lawful! A "statutory marriage" is registered with the State as a result of the man and woman applying for a State marriage license and thus entering into a three-party contract with the State. Obviously the State keeps records of all contracts to which it is a party and therefore such a marriage is "known to exist" to State authorities. It is equally obvious that a private common law marriage would not be "known to exist" to State authorities. The problem arises from the erroneous view that "not recognized" is synonymous with "invalid". Because of Meister, no state can arbitrarily declare common law marriage invalid by legislation, and none have done so! To state the point most clearly - "not recognized" does not mean, "invalid". Validity of Marriage Now that we have established that "recognition" and "validity" are two separate issues, one might then reasonably inquire as to what constitutes a "valid" marriage at common law? It should be pointed out that under the common law, unless there is a controversy that arrives before a court of law, which calls into question the validity of a marriage, a marriage thought proper by the consenting parties is a valid marriage. It is bringing the marriage within the scope of judicial review that raises the specter of the marriage being invalidated. The issues that a court may review in determining the validity of a marriage are: In summary, validity (or lack thereof) is often determined based a composite picture drawn from the totality of the circumstances. The person who wishes to establish an incontrovertible record of a valid common law marriage should make sure to steer clear of areas that leave room for ambiguity. One who wishes to make an incontrovertible record should: 1. Have both parties sign a marriage contract and have the document notarized. By applying each of these elements, there is no court in America that can declare your common law marriage invalid. Why then has Common Law Marriage acquired a dubious reputation? Many people shy away from common law marriage today because they feel it is nothing more than "shacking-up", covered by a very thin veneer of respectability, as well as affording no legal protection concerning property rights and child custody issues if the marriage fails. Since those are really two separate issues, lets look at the "shacking-up" perception first. Pretending To Be Married People who look at common law marriage as merely shacking-up are not necessarily wrong in their view. Whenever The People have a right secured to them that the government cannot control or interfere with, there will always be people who will misuse that right. That's just human nature. Common law marriage is not immune to that human foible and may very well, by its nature, be more prone to misuse than some other rights. Proving Your Marriage You will only be called upon to "prove" your marriage if you are seeking some right or benefit (either private or public) that is available only to a person who is married. Examples of such matters are; death benefits to spouse on a life insurance policy; company provided medical benefits to spouse, etc.
If you are prepared, and you're astute during the hearing, odds are good the agency will recognize your marriage as valid and binding upon them. If they don't, then their own official record can now be used against them in a court action to force them to recognize the marriage. Remember, when a court reviews an agency's decision, it is nothing more than an "administrative appeal" handled by a guy in a black robe. The only evidence that the court can consider about your marriage is that which was entered into the official record during the administrative hearing and any agency regulations on the subject. More on Common Law Marriage It is interesting to note the current definition of "marriage license" in Black's Law Dictionary, 6th Ed [1991] (which is the one used in a Family Law court):
So far, so good; a license is required for persons who desire to "intermarry". Fine; but what exactly does "intermarry" mean? Black's Law Dictionary (6th Ed): [Editor's Note: Please note that the courts have held it to be unconstitutional to altogether "prohibit" such marriages, but the courts do not say that it is unconstitutional to require such marriages to be licensed .] Keeping the foregoing facts in mind, let's look at a typical State marriage statute. Since we are most familiar with California statutes, we'll examine the section from the California Family Code:
As you likely know, statutory law that lays a duty upon a person must be specific in the particulars that give rise to the duty. You will note that the section 300 does not require anyone to apply for a license; it merely says that consent "must" be followed by the issuance of a license. How then shall we interpret "must" in this context?
Given the US Supreme Court's holding in Meister [that all State marriage laws are merely directory in nature] which of the two definitions of "must" are applicable? Clearly the definition that gives the statute a directory character must be applied if the statute is to comports itself with the Meister decision, and thus remain within the bounds of Constitutionality. If the legislative draftsmen who wrote these laws were not attempting to deceive you, section 300 would not depend on the subterfuge of veiled definitions, and it would read as follows: Reference Material If you would like to learn more about common law marriage, an excellent legal analysis of the subject can be found in the book, "Common Law Marriage and its Development in the United States", written by Otto E. Koegel, D.C.L. This book was published by John Byrne & Company in 1922 and can generally only be found in a well-stocked law library. (From Dave Champion's web-site: http://www.originalintent.org/) |