Marriage Defenders

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- Washington Case Carlson -

Washington State Appeal and Defenses

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Carlson Appeal

WA C.O.P. DIV. 1 NO.: 54632-5-I
WA SUPREME COURT NO.: 75772-1


IN THE COURT OF APPEAL

OF THE STATE OF WASHINGTON


APPELLATE DIVISION 1

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In re the Marriage of E and RONALD CARLSON:

E M CARLSON,
Petitioner and Respondent;

And,

Ronald Lee CARLSON,
Respondent and Appellant.

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Appeal from the Superior Court for the County of Snohomish,
(Cause No. 03-3-00971-9)
Ellen J. Fair, Judge

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APPELLANT'S OPENING BRIEF

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Ronald L. Carlson,
Appearing Pro Se;
Mailing Address: 12720 4th Avenue W., #F-405,
Everett, Washington 98204-5707;
Message Telephone: (425) 340-8393.


TABLE OF CONTENTS


TABLE OF AUTHORITIES ii
ISSUES PRESENTED (ENUMERATED SECTIONS) viii
INTRODUCTION 1
STATEMENT OF FACTS 6
LEGAL DISCUSSION 7
I. THE ACT AS APPLIED VIOLATES PROCEDURAL DUE PROCESS UNDER THE DUE PROCESS CLAUSE TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 7
A. Procedural Due Process. 9
II. THE ACT AS APPLIED IS AN UNCONSTITUTIONAL VIOLATION OF THE EQUAL PROTECTION CLAUSE AND OF SUBSTANTIVE DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. 22
A. Equal Protection Clause. 22
B. Substantive Due Process. 26
C. Appellant Has A Vested Property Right In His Marital Status. 27
III. THE ACT VIOLATES ARTICLE I § 10 OF THE UNITED STATES CONSTITUTION, THE CONTRACTS CLAUSE. 29
A. Marriage Is A Contract. 29
B. A Marriage Contract Falls Under The Prohibition Of The Contracts Clause Of The United States Constitution Where The Legislature Acts To Annul All Marriages Or Allows Either Party To So Annul. 30
C. Maynard v. Hill Is Distinguishable. 35
IV. SOCIOLOGICAL OUTCOMES OF THE ACT. 37
V. THE ACT AS APPLIED IS AN UNCONSTITUTIONAL VIOLATION OF THE FREE EXERCISE CLAUSE UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION. 43
VI. THE ACT PLACES A SUBSTANTIAL BURDEN ON THE FREE EXERCISE CLAUSE OF RELIGION UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRING AN ACCOMODATION FOR THE FREE EXERCISE OF RELIGION. 50
WE ARE A CHRISTIAN NATION 57
CONCLUSION 65

TABLE OF AUTHORITIES

CASES
Adams v. Palmer,
51 Me. 480 35
Armstrong v. Manes, (1965)
380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 15
Boddie v. Connecticut, (1971)
401 U.S. 371, 91 S.Ct. 780, 18 L.Ed.2d 1010 9, 10, 12, 14, 15
Cantwell v. Connecticut, (1940)
310 U.S. 296 43
Church of the Holy Trinity v. United States, (1892)
143 U.S. 457; 36 L ed 226. 71
Dartmouth College v. Woodward, (1819)
4 Wheat 518, 4 L. Ed, 629 5, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36
Davis v. Beason, (1890)
133 U.S. 333 66
DeBurgh v. DeBurgh, (1952)
39 C.2d 858, 250 P.2d 598 28
Everson v. Board of Education, (1947)
330 U.S. 1 43
Fearon v. Treanor,
272 N.Y. 268, 5 N.E.2d 815 35
Harris v. City of Philadelphia, (1995)
47 F.3d 1333 16
Ikuta v. Ikuta, (1950)
97 C.A.2d 787, 218 P.2d 854 28, 35
In re Marriage of McKim, (1972)
6 C.3d 673; 100 Cal.Rptr. 140 8, 13
In re Marriage of Walton, (1972)
28 C.A.3d 108; 104 Cal.Rptr. 472 25, 28, 35
In re Murchison, (1965)
349 U.S. 133 10
In re Winship, (1970)
397 U.S. 357; 90 S.Ct., 1068 19
Logan v Zimmerman Brush Co., (1982)
455 U.S. 422; 102 S.Ct. 1148; L.Ed.2d 265 9, 10, 16, 26, 27
Lynch v. Donnelly, (1985)
465 U.S. 668. 64
Mathews v. Eldridge, (1976)
424 U.S. 319; 96 S.Ct. 893, 47 L.Ed.2d 18 14, 16, 17
Maynard v. Hill, (1887)
125 U.S. 190; 8 S.Ct. 723; 31 L.Ed. 654 28, 30, 31, 32, 35, 36
Morgan v Morgan, (1923)
190 C. 522; 213 P. 993 5, 12
Mott v. Mott, (1890)
82 Cal. 413 28, 36
Murden v. County of Sacramento, (1984)
160 C.A. 3d 302; 206 Cal.Rptr. 699 9, 16
Murphy v. Ramsey & Others, (1885)
144 U.S. 15 65
Perez v. Sharp, (1948)
32 C.2d 711; 198 P.2d 17 28
Railway Express Agency v. New York, (1949)
336 U.S. 106 22
Roberts v. United States Jaycee, (1984)
468 U.S. 609; 104 S.Ct. 3244; 82 L.Ed.2d 462 7, 8
Santosky v. Kramer, (1982)
455 U.S. 745 17, 18, 19
School District of Abington Township v. Schempp, (1963)
374 U.S. 203 72
Shelly v. Kraemer, (1948)
334 U.S. 1; 68 S.Ct. 836; 92 L.Ed. 1161 14, 23, 24
Sierra Club v. Watt, (1985)
608 Supp. 305 15
The Church of Jesus Christ of Latter Day Saints v. United States, (1890)
136 U.S. 1. 66
Thomas v. Review Board, (1981)
450 U.S. 872 43
United States v. Ballard, (1944)
322 U.S. 78 43
United States v. Macintosh, (1931)
283 U.S. 605 71
Vidal v. Girard's Executors, (1844)
43 U.S. 126. 65
Wallace v. Jafree, (1985)
472 U.S. 38 73
Zorach v. Clauson, (1952)
343 U.S. 306 72
CONSTITUTION & STATUTES
Act (RCW 26.09.030) passim
RCW 26.04.010(1) 28
RCW 26.04.050 44, 61
RCW 26.04.120 45, 61, 62
RCW 26.09.030 1, passim
U.S. Constitution; Amendment 1 43, 59, 60
U.S. Constitution; Amendment 14 9, 10, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 24, 27
U.S. Constitution; Article 1, Section 10 28, 33, 34, 35, 36
U.S. Declaration of Independence (July 4, 1776) 52
TREATISES
8 Witkin, Constitutional Law, (Ninth Ed., 1988), Section 593 21
8 Witkin, Constitutional Law, (Ninth Ed., 1988), Section 599 22
L. Tribe, American Constitutional Law, (1988) § 14.4 59
Nowak, Constitutional Law, (3d Edition 1989) § 12.3 24
Nowak, Constitutional Law, (3d Edition 1989) § 14.4 21
LAW REVIEWS
DiFonzo, No-fault Marital Dissolution: The Bitter Triumph of Naked Divorce,
31 S.D.L.Rev. 519, (1994) 19, 21, 23
Frank, Berman & Mazur-Hart, No fault Divorce and the Divorce Rate:
The Nebraska Experience - An interrupted Time Series Analysis and Commentary,
58 Neb. L. Rev. 1 (1978) 5, 37
Llewellyn, Behind the Law of Divorce:
32 Colum. L. Rev. 1281 (1932) 3
Wardle, Divorce Violence and the No-Fault Divorce Culture,
Utah Law Review, 741 77
Wardle, No-fault Divorce and the Divorce Conundrum,
BYU Law Rev., 79 (1991) 2, 4, 5, 14, 37, 38
BOOKS
Barton, David The Myth of Separation,
(Aledo, TX: WallBuilder Press, 1991), pg. 150. 77
Berman, Harold J., Law and Revolution:
The Formation of the Western Legal Tradition,
(Harvard University Press, 1983) 79
Blankenhorn, David Fatherless America:
Confronting Our Most Urgent Social Problem
(New York: Basic Books, 1994) 41
Demar, Gary America's Christian History: The Untold Story,
(Atlanta, GA: American Vision, Publishers, Inc., 1993), pg. 58. 77
Dobson, James C. Marriage Under Fire:
Why We Must Win This Battle (Multnomah Publishers, Inc. 2004) 40, 42
Ellwood, David Poor Support: Poverty in the American Family
(New York: Basic Books, 1988), 46 41
Garfinkel, Erwin and McLanahan, Sara Single Mothers and Their Children
A New American Dilemma
(Washington DC: The Urban Institute Press, 1986), 30-31 41
Gottfredson, Michael and Hirschi, Travis A General Theory of Crime
(Stanford, CA: Stanford University Press, 1990), 103 41
McLanahan, Sara and Sandefur, Gary Growing Up With A Single Parent:
What Hurts, What Helps
(Cambridge, MA: Harvard University Press, 1994) 41


Popenoe, David Life Without Father: Compelling Evidence That Fatherhood and Marriage Indispensable for the Good of Children
(New York: The Free Press, 1997) 40 Pruett, Kyle D. Fatherhood: Why Father Care is as Essential as Mother Care for your Child
(New York: The Free Press 2000) 41
Redman, The Fault of Fault, (1987) 3
Stanton, Glenn T. Why Marriage Matters:
Reasons to Believe in Marriage in Postmodern Society
(Colorado Springs, CO: Pinon Press, 1997) 40, 42
Waite, Linda and Gallagher The Case for Marriage: Why Married People
are Happier, Healthier, and Better off Financially
(New York: Double Day, 2000) 42
Wallerstein, Judith, et.al., The Unexpected Legacy of Divorce:
A 25-Year Landmark Study (New York: Hyperion, 2000) 41
Wallerstein, Second Chances, (1995) 38
Witte, Jr., From Sacrament to Contract:
Marriage, Religion, and Law in the Western Tradition, (1997) 2, 39, 77
Zill, Nicholas - Morrison, Donna - and Coiro, Mary Jo
"Long-Term Effects of Parental Divorce on Parent-Child Relationships,
Adjustment, and Achievement in Young Adulthood,"
Journal of Family Psychology 7 (1993):91-103 41


PUBLICATIONS
"What God Has Joined Together: A Marriage After God's Own Heart"
Discipleship Journal, Issue 142 (July/August 2004, The Navigators/
NavPress Colorado Springs, CO): Special Section 54
"What God Has Joined Together: The Covenant of Marriage-'Til Death Do Us Part" Discipleship Journal, Issue 142 (July/August 2004, The Navigators/
NavPress Colorado Springs, CO): Special Section 56
"What God Has Joined Together: Toward a More Perfect Union"
Discipleship Journal, Issue 142 (July/August 2004, The Navigators/
NavPress Colorado Springs, CO): Special Section 58
Galston, Divorce American Style; The Public Interest. Su. '96., p. 15 U.O.Md. 39

Journal of Marriage and the Family, at 477-488, May 1995 37
Newman, Falling from Grace: The Experience of Downward Mobility
in the American Middle Class, (1988) 38
San Francisco Chronicle: June 3, 1997; p. A6 38
Whitehead, Divorce, California Style: An argument
for keeping the fault out of divorce, California Lawyer, (pg. 40) January 1998 6

SCRIPTURE, SPIRITUAL/RELIGIOUS WRITINGS
Church of the Nazarene Manual, 1997-2001,
(Nazarene Publishing House, Kansas City Missouri, 1997) 3, 44, 45
The Holy Bible, (NKJV - New King James Version,
Copyright © 1982 by Thomas Nelson, Inc.) 3, 45, 46, 47, 48, 50, 51, 52, 58, 63, 78, 79

OTHER
Amato, Paul R. and Rivera, Fernando "Paternal Involvement
and Children's Behavioral Problems,"
Journal of Marriage and the Family 61 (1999): 375-84 41
Angel, Ronald J. and Worobey, Jacqueline "Single Motherhood
and Children's Health,"
Journal of Health and Social Behavior 29 (1988): 38-52 41
Bing, Ellen The Effect of Child Rearing Practices on the Development
of Differential Cognitive Abilities,"
Child Development 34 (1963): 631-48 41
Burk, W. Herbert, B.D., Washington's Prayers
(Norristown, PA: Published for the benefit of
the Washington Memorial Chapel, 1907), pp. 15, 87-95. 76
Childs, George W., The Christian Life and Character of
the Civil Institutions of the United States (Philadelphia: 1864), pp. 317, 320 - 327. 74

Coltrane, Scott "Father-Child Relationships and
the Status of Women: A Cross-Cultural Study,"
American Journal of Sociology 93 (1988): 1088 41
Coombs, Robert "Marital Status and Personal Well-Being:
A Literature Review," Family Relations 40 (1991): 97-102 42
Dawson, Deborah "Family Structure and Children's Health and Well-Being:

Data From the 1988 National Health Interview Survey on Child Health,"
Journal of Marriage and the Family 53 (1991): 573-84 41
Goodwin, James, et.al., "The Effect of Marital Status on Stage,
Treatment, and Survival of Cancer Patients,"
Journal of American Medical Association 258 (1987): 3125-3130 42
Hetherington, E. Mavis "Effects of Father Absence
on Personality Development in Adolescent Daughters,"
Developmental Psychology 7 (1972): 313-26 41
Joung, I.M., et.al., "Differences in Self-Reported Morbidity
by Marital Status and by Living Arrangement,"
International Journal of Epidemiology 23 (1994): 91-97 42
Koestner, Richard, et.al., "The Family Origins of Emphatic Concern:
A Twenty-Six Year Longitudinal Study,"
Journal of Personality and Social Psychology 58 (1990): 709-17 41
Malzberg, Benjamin "Marital Status in Relation to
the Prevalence of Mental Disease,"
Psychiatric Quarterly 10 (1936): 245-61 42
McLanahan, Sara "Life Without Father: What Happens to Children?"
Center for Research on Child Well Being
(Working Paper #01-21, Princeton University, 15 August 2001) 41
Michael, Robert T., et.al., Sex in America: A Definitive Survey
(Boston, MA: Little, Brown, and Company, 1994), 124-29 42
Page, Randy and Cole, Galen "Demographic Predictors of
Self-Reported Loneliness in Adults,"
Psychological Reports 68 (1991): 939-45 42
Remez, L. "Children Who Don't Live With Both Parents
Face Behavioral Problems,"
Family Planning Perspectives, January/February 1992 41
Report of 1969 Divorce Reform Legislation, 4 Assem. J. 8054 (1969) 11
Rogers, Richard "Marriage, Sex, and Mortality,"
Journal of Marriage and the Family 57 (1995): 515-26 42
Rohner, Ronald P. and Veneziano, Robert A. "The Importance of Father Love:
History and Contemporary Evidence,"
Review of General Psychology 5.4 (2001): 382-405 41
Stack, Steven and Eshleman, J. Ross "Marital Status and Happiness:
A 17 Nation Study," Journal of Marriage and the Family 60 (1998): 527-36 42
Stiffman, Michael, et.al., "Household Composition
and Risk of Fatal Child Maltreatment," Pediatrics 109 (2002): 615-21 42
Waite, Linda "Does Marriage Matter?," Demography 32 (1995): 483-507 42
Wallerstein, Judith and Blakeslee, Sandra, Second Chances:
Men and Women a Decade After Divorce
(New York: Ticknor and Fields, 1990); 42
Williams, David, et.al., "Marital Status and Psychiatric Disorders
Among Blacks and Whites,"
Journal of Health and Social Behavior 33 (1992): 140-157 42



ISSUES PRESENTED (ENUMERATED SECTIONS)

(I.) Does the Act Violate Procedural Due Process Under the Fourteenth Amendment to the United States Constitution?

(II.) Does the Act Violate the Equal Protection Clause And/Or Substantive Due Process Under the Fourteenth Amendment to the United States Constitution?

(III.) Does the Act Violate Article I, Section 10 of The United States Constitution, The Contracts Clause?

(V.) Does the Act Violate the Freedom of Religious Expression Clause of the First Amendment to the United States Constitution?

(VI.) Does the Act Require Accommodation for The Free Exercise of Religion?



INTRODUCTION

In a single generation: Beginning with California's Family Law Act of 1969 and its subsequent amendments; And then followed by the national Uniform Act, as adopted by Washington and codified presently as RCW 26.09.030 (hereafter both California's Act and the Uniform Act [RCW 26.09.030 in Washington] in that they are commonly referred to as "no-fault divorce" laws, with identical impact in their respective jurisdictions, are interchangeably referred to herein as the "Act", passim), the formal adjudication of claims for dissolution of marriage has become essentially an administrative process that is merely supervised by the judiciary. This clerical-like role demeans the judiciary, vulgarizes the plain and traditional meaning of marriage-specifically appellant's religious and covenantal union of Christian marriage-and ignores Constitutional values and policies traditionally supportive of marriage as firmly established at our nations founding.

The outcomes of Washington passing the Act have been pejorative for Washington's families and much worse upon our children. The Act overthrew two centuries of American legal tradition in the treatment of marriage and family, a tradition that favored marriage and family and discouraged divorce. Review should be granted in this case first and foremost because it presents the profound question of weather Washington law may constitutionally have a policy that promotes divorce. Many legal commentators are beginning to rue the effects of the Act and admit that it is has yielded an unsound law and public policy for Washington marriages and families.
Marriage is the essential foundation upon which society rests for the nurture, education, and rearing of the young as self-controlled, productive and law-abiding citizens. The Act implicitly rejects the notion that marriage is a permanent contractual commitment of lifelong status requiring contractual agreement, a license and solemnization . Instead the Act treats marriage as a mere revocable status or condition, which fails to reflect deeply embedded social mores . Under the Western Legal Tradition marriage was never understood to mean an arrangement "so long as I feel good about it", rather it has always been understood to mean a commitment "till death do us part" , or, as is the case of the CARLSON marriage, "…for as long as we (they) both shall live." But that is not what the Act teaches . Instead, the Act instructs us that marriage is permanent until one spouse is willing to stand in court to merely say that it is not. Also see: Redman, The Fault of Fault, (1987) "no-fault causes people to 'look at marriage the way an eighth grader looks at going steady'".

Without warrant from documented social research on the consequences of divorce on women, men, or their children, the Act committed Washington to transform the semantics surrounding marriage from notions of permanency to solubility, as if marriage were a garment one could remove on impulse to throw in the wash by the simplistic procedure as applied under the Act. The Act therefore endangers the stability of Washington families and of society at large. It over facilitates divorce, and even promotes or invites it , and worse, has spread these effects by its pernicious influence throughout the nation for those legislatures who have adopted similar no-fault divorce laws.

Reconsideration of the Act as applied in this case is urgently needed. There is no argument contesting the fact that Appellant has a fundamental right in the preservation and maintenance of his marriage; Mr. and Ms. Carlson apparently disagree that each party has a right to a unilateral dissolution of the marriage for any or for no reason at all. They also appear to disagree as to whether the Act is actually regressive as harmful social policy in facilitating a phenomenal rise in divorce rates over the past thirty years. The impact of this appeal cannot be over emphasized; the legal issues before the Court have wider and more serious implications beyond the preservation or termination of the parties' own covenant of marriage, though this is personally a paramount concern for Appellant. These far reaching concerns alone merit careful consideration of this court of the issues raised herein by Appellant. Because of these concerns, how the court rules in this case is of monumental and historical importance, whether in respect to the CARLSON marriage and family, to the institution of marriage and family in Washington or to the social climate of the nation in the domestic arena. Without such review, marriages in Washington will continue to be subjected to a unilateral divorce on demand standard that promotes divorce and violates public policy , . It is necessary for this Court to review this important issue of family law and render justice for Washington Marriages and families, and for Washington's children.

Pivotal to determination of relief requested by Appellant Is the Dartmouth opinion (Infra, passim) . Appellant has a fundamental right in the preservation and maintenance of his marriage.
In an attempt to justify the no fault system, some argue that the former fault based system was "fraught with abuse". However, that would be a revisionist perspective, which has been exposed by the fact that prior to 1970, nearly ninety-five percent of all divorce cases were uncontested and had a comparative lack of acrimony in comparison to today's dissolution actions. If anything is "fraught with abuse" and Constitutionally questionable it is the no-fault system provided by the Act.
STATEMENT OF FACTS

Appellant, Ronald Lee Carlson, appeals a final order (June 23, 2004) granting E M Carlson dissolution of their marriage. Ronald and E met in 1992, were engaged in 1999, and were married on May 27, 2000, in Lynnwood, Washington. The CARLSON Marriage covenant was solemnized by an ordained Christian minister, of the Church of the Nazarene, in a sanctuary of the Church of the Nazarene. Following the consummation of the marriage, the CARLSONs resided in Everett, Washington, and issue from the marriage is one child, Born December 2002-Savannah Grace Carlson.


On April 10, 2003 E Carlson petitioned the court for a dissolution of the marriage, therein stating the marriage as being "irretrievably broken". Mr. Carlson, thereafter, responded to that petition steadfastly trying to restore and protect the CARLSON marriage, maintaining at all times that the marriage was not irretrievably broken and that forgiveness and thereby good faith efforts toward the reconciliation of he and his wife must occur.

On June 23, 2004, Snohomish County Superior Court Judge Ellen J. Fair, based on the wife's testimony at a May 07, 2004 trial, wherein Ms. Carlson answered "yes" to the question posed by her attorney, "Is the marriage irretrievably broken?", executed an order for the dissolution of the CARLSON marriage.

LEGAL DISCUSSION

I. THE ACT AS APPLIED VIOLATES PROCEDURAL DUE PROCESS UNDER THE DUE PROCESS CLAUSE TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

Appellant' has a fundamental interest in the maintenance and preservation of his marriage. Strong support for this proposition is provided by Roberts v. United States Jaycee, (1984) 468 U.S. 609; 104 S.Ct. 3244; 82 L.Ed.2d 462, which states:
"The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships.... The personal affiliations that exemplify these considerations,... are those that attend the creation and sustenance of a family - marriage... childbirth.... Family relationships, by their nature involve deep attachments and commitments to the necessarily few other individuals with whom one share not only a special community of thoughts, experiences, and beliefs but also distinctly personal aspects of one's life." Roberts v. United States Jaycee, (1984) 468 U.S. 609; 104 S.Ct. 3244; 82 L.Ed.2d 462.

Appellant has a fundamental interest in preserving the marriage, while the respondent claims her own fundamental interest in exiting the marriage. This is the tension point, between these two competing fundamental rights. The courts have historically provided guidance in these situations. The issue is justicable.
If the Court applies any weighting between these two competing interests it should be in the favor and direction of holding marriages together. This is reasonable. The rational is based in the significance of the institution of marriage to our society, its tradition in our culture and the concomitant interest the state has in preserving it. To allow marriages to be dissolved upon the mere declaration of one party is to undermine the institution. This is even more pronounced when the marriage is a covenant marriage, i.e. an expression of faith and religion, as is the case of the CARLSON Christian covenant of marriage. (See Section V. and VI. herein, infra.) As a California court in McKim established:
"The public is interested in the marriage relation and the maintenance of its integrity, as it is the foundation of the social system, and the law wisely requires proof of the facts alleged as the ground for its dissolution." In re Marriage of McKim, (1972) 6 C.3d 673, 680; 100 Cal.Rptr. 140. (emphasis added.)

Every respondent who does not consent to the mere declaration of the petitioner that the marriage is beyond any hope for reconciliation or, as is the case in Washington, that the marriage is "irretrievably broken", loses and every such petitioner wins on the issue of status.
A. Procedural Due Process.

Fundamental fairness is the core requisite of the Due Process Clause. The issue sharpens upon what, or how much, fairness is required. For Appellant to be Constitutionally protected by fairness under Due Process of law the cases speak of the right to be heard at a meaningful time and in a meaningful manner. Boddie v. Connecticut, (1971) 401 U.S. 371, 378, 91 S.Ct. 780, 18 L.Ed.2d 1010; Murden v. County of Sacramento, (1984) 160 C.A. 3d 302, 311; 206 Cal.Rptr. 699. Respondent may have the opinion that for Appellant to show up, speak, and receive the court's order is all that is mandated by the requirement of a meaningful hearing under Due Process of law. But the Constitutional Clause demands more than that. It requires that a meaningful hearing be one in which the expectation of fairness, and a fair adjudication takes place.

If Due Process of law does not mean at least that, our very society, including the institution of marriage may crumble under the niceties of technical procedures, which lack justice. Justice Blackmun in the Logan case, infra., articulates with greater precision what "meaningfulness" requires under the Due Process Clause:
"As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged." Logan v Zimmerman Brush Co., (1982) 455 U.S. 422, 433, 102 S.Ct. 1148; L.Ed.2d 265.

Justice Blackmun clarifies that to allow a party to have a hearing without the opportunity of a "fair shot" at the merits is not an opportunity at all. It is merely an opportunity to be denied justice by those acting under the power thereof. That kind of legal facade does not pass Constitutional muster. This is precisely what Appellant has been subjected to under the Act by its construction or alternatively by the way it has been applied in practice. Appellant must be afforded the opportunity to have the merits of his case "fairly judged", if the process is judicial. If the courts have been subverted to the legislative will, to become administrative agencies hearing dissolution matters decided upon the mere recitation of a statutory mantra of one party, then the process itself has exceeded the proper role set for the judiciary to adjudicate cases. If Due Process does not require this then biased and "fixed" forums could conduct hearings, provide "opportunity" and never deliver justice. And that is both a perversion of justice and a functional definition of the proverbial "kangaroo court".

What the Due Process Clause guarantees in every judicial hearing is fairness, i.e., "[a] fair trial in a fair tribunal [is the] basic requirement of due process." In re Murchison, (1965), 349 U.S. 133, 136. Due Process requires that a meaningful hearing be provided in which a fair adjudication takes place. Boddie v. Connecticut, (1971) 401 U.S. 371, 91 S.Ct. 780, 18 L.Ed.2d 1010; Logan v Zimmerman Brush Co., (1982) 455 U.S. 422.
Transcripts show the testimonial evidence taken at trial on the issue of status was woefully short of the requirements of meaningful due process.

Appellant argues that by statistical evidence, by adjudication on thin subjective evidence and by the application of a burden of proof inappropriate to the nature of the hearing he was denied Due Process of law. All non-consentual respondents who actually challenge status in dissolution proceedings, who challenge the issue of status, suffer the same final determination (the dissolution of marital status). Appellant challenges Respondent to produce one case where a respondent, who contested that the marriage was irretrievably broken, prevailed on the merits in challenging status in a dissolution proceeding or, in the alternative, to define one set of facts (under the Act…) where such success would be a likely result. At the status hearing the trial court relied on subjective testimonial evidence (merely a recitation, upon cue of counsel, of the mantra "irretrievably broken") alone. And while the record below includes affidavits containing allegations of a behavioral nature yet it contains nothing that rises to the evidentiary standard of "substantial reasons" as required.

The legislative record of the Act, as it began in California, shows that "irreconcilable differences" grounds for divorce was intended to be applied with a much higher evidentiary standard. The record states:
"The Governor's [California] commission's proposal would have terminated the court's power to deny a decree of dissolution after a certain period of time, provided the parties had taken certain procedural steps. That perfunctory concept of dissolution was rejected in the new legislation. Without that supervening power the court would be performing a ministerial function which could be accomplished as well by a referee or a clerk. If that kind of procedure were adopted, only unresolved matters incident to divorce, such as support, child custody or property division, would require judicial determination. The court should sit as an overseeing participant to do its utmost to effect a healing of the marital wounds." (Report of 1969 Divorce Reform Legislation, 4 Assem. J. 8054 (California, 1969), at 8058) (emphasis added).

In light of this legislative record and the three decades of experience under the Act, one cannot say that terminating status of a marriage is anything more than a "perfunctory" set of procedures, nor that the judicial function in deciding status in a dissolution action is anything more than a ministerial function. Dissolution of marital status has indeed become a perfunctory ministerial rubber-stamping, which every clerk of court could perform. This is in violation of the evidentiary requirements of the Act, it is a denial of Due Process.
In Boddie v. Connecticut (supra) the court ruled that requiring an indigent person to pay a filing fee before obtaining a divorce violates the Due Process Clause because it effectively blocked the petitioner from access to court. Analogically, while Appellant has not been denied physical access to enter court or a "hearing" per se, Appellant has been denied something far more insidious, he has been denied "access" to prevail on the merits. In offer of proof, there is no combination of facts wherein Appellant, or any non-consenting respondent who challenges status for that matter, may prevail against a petitioner. Respondent affirms this is all the process that is his due. This kind of punitive procedure does not stand Constitutional muster. The procedure is a shock to the conscience; it offends the essence of Constitutionality. No reasonable person could rationally believe they are receiving Due Process when there is a fixed outcome.
"It is not the policy of the law to encourage divorces."
Morgan v Morgan, (1923) 190 C. 522, 525; 213 P. 993
(emphasis added).

To allow the Decree of Dissolution below to stand in the face of the procedures and narrow testimony provided at the "hearing" is to affirm a tacit policy in Washington that promotes divorce. This in itself is a violation of the judicial understanding of public policy because the state has a strong public policy interest in preserving the institution of marriage. This court may look to California where the significance of this policy and its relationship to a proper evidentiary showing under the Act was addressed in Marriage of McKim:
"Although the Legislature intended that as far as possible dissolution proceedings should be nonadversary, eliminating acrimony, it did not intend that findings of the existence of irreconcilable differences be made perfunctorily. It rejected a proposal under which the court could have been required to dissolve a marriage on a showing that the parties had taken certain procedural steps and that a certain period of time had passed. Instead the Family Law Act contemplates that the court should sit as an overseeing participant to do its utmost to effect a healing of the marital wounds...." In re Marriage of McKim, (1972) 6 C.3d 673, 679; 100 Cal.Rptr. 140 (emphasis added).

The reason no respondent who contests to a mere declaration that the marriage is "irretrievably broken" can prevail in opposing a petition to terminate status is because although he or she might be given an opportunity to be heard, his or her opposition is thwarted by a predetermined or foreordained outcome. This is so because under the Act the procedural requirements of Due Process are met only in barest of image but not in substance. Testimony and evidence will be taken by the factfinder but no real evidentiary standard will be applied except for perhaps the unstated (and illegal) "irrebuttable presumption" in favor of the petitioner. As one author concurs:
"No-fault divorce laws assume that the filing of a petition for divorce is unmistakable evidence that a marriage has been irretrievably broken. Thus, American no-fault divorce laws do not require (some do not even allow) any meaningful inquiry into whether the marriage truly is irretrievably broken. The absence of any implementing standards betrays the emptiness of 'irretrievable breakdown' and 'irreconcilable differences' as meaningful legal tools." Wardle, No-fault Divorce and the Divorce Conundrum, BYU Law Rev., 79, 130 (1991). (emphasis added.)

What Appellant received was not a meaningful hearing; it was merely an opportunity to be heard without meaning at all. It was effectively an opportunity to be silenced. This procedure makes the so-called meaningful hearing meaningless.
B. Balancing Test.

Respondent may argue against that application of the Mathews v. Eldridge, (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, balancing test to this case claiming that the State, through it's judicial function is a benign or neutral actor not arising to State action. But that would be a prosaic assertion. The balancing test does apply to the case at bar. That State action is at play in this case is patent-the State is involved in the termination of a marital relationship. State action in the instant case is plainly satisfied by the act of the legislature in passing the Act or alternatively through the monolithic judicial action of rejecting the claim of every non-consentual respondent who challenges the issue of status. Shelly v. Kraemer, (1948) 334 U.S. 1; 68 S.Ct. 836; 92 L.Ed. 1161.
In Boddie v. Connecticut the Supreme Court stated in respect to the Due Process Clause:
"What the Constitution does require is "an opportunity * * * granted at a meaningful time and in a meaningful manner," Armstrong v. Manes, (1965) 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (emphasis added), "for [a] hearing appropriate to the nature of the case,"... No less than these rights, the right to a meaningful opportunity to be heard within the limits of practicality must be protected against denial by particular laws that operate to jeopardize it for particular individuals." Boddie v. Connecticut, (1971) 401 U.S. 371, 378, 91 S.Ct. 780, 18 L.Ed.2d 1010.

"Implicated in this formulation of the standard is the further question of meaningful to what? The answer seems straight forward enough-the hearing must be meaningful in terms of the threatened [loss]." Sierra Club v. Watt, (1985) 608 Supp. 305, 326.

The threatened loss for Appellant is in the state claiming a statutory basis to compel the destruction of the CARLSON marriage covenant-a Christian marriage covenant premised and solemnized on mutual vows, promises, terms, and conditions (at once being sacred, solemn, and permanent) that the Act negates without his consent. Appellant was forced onto fixed scales, deceptively called justice, to defend the viability of his marriage. The stakes, inter alia, are the love and service to and between he and his wife, the sense of wholeness of his family and legacy, his sense of self-identity as a married man, and his first amendment right to freely express the life-long permanence of the Christian covenant of marriage, as ordained by God, of which both he and his wife inextricably are one in Christ Jesus the Lord, for as long as they both shall live.

XXX
The cases squarely affirm that when the issue of fairness of a hearing under the Due Process Clause presents, the answer comes in the balancing test of Mathews v. Eldridge (supra). Examples abound (WA?). A brief list of authorities includes:
"…the timing and nature of the required hearing ' will depend on appropriate accommodation of the competing interests involved.' These include the importance of the private interest and the length or finality of the deprivation" Logan v Zimmerman Brush Co., (1982) 455 U.S. 422, 434;
"The fundamental requisite of Due Process of law is the opportunity to be heard,... Moreover, 'the key component of Due Process,... is central fairness at the hearing. Essential fairness is a flexible notion, but at a minimum one must be given notice and opportunity to be heard 'at a meaningful time and in a meaningful manner'.... Identification of the specific dictates of Due Process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards...'' Murden v. County of Sacramento, (1984) 160 C.A. 3d 302, 311, 206 Cal.Rptr. 699;
"The fundamental requirements of Due Process are notice and a meaningful opportunity to be heard, but the 'concept' is flexible, calling for procedural protection as dictated by the particular circumstance". Harris v. City of Philadelphia, (1995) 47 F.3d 1333, 1338.

It is further contemplated that Respondent may attempt to argue the Mathews v. Eldridge balancing test out of this case by distinguishing its facts, however, that would be a pedestrian argument and simply not true to the law. So long as there is a deprivation of property or a fundamental liberty interest by or through State action, coupled with a fairness claim, there must be a balancing of interests. To determine the "meaningfulness" of a hearing under the Due Process Clause is therefore reducible to the application of the balancing test stated in Mathews v. Eldridge, (1976) 424 U.S. 319; 96 S.Ct. 893, 47 L.Ed.2d 18.

In balancing the interests of this case in order to determine the appropriate standard of proof to satisfy Due Process, Santosky v. Kramer, (1982) 455 U.S. 745 is a model analysis in that it specifically addresses the concerns of traditional family relationships and related issues thereof. Santosky dealt with the termination of parental rights in child custody based upon habitual neglect. Santosky focused on the interest of the parents in maintaining their parental relationship (note: not focused on a child(ren)'s right or interest in keeping both it's (their) parents, though that interest is also of great social concern). Therefore the court should accommodate no less respect for spouses of a marriage as was given to the Santosky's in seeking to preserve parental rights. Even more, there are sound sociological, philosophical, and theological arguments that a man and a woman who enter into the binding covenant of marriage, in that there is a clear biblical command of Christ Jesus, the Lord God their Creator, to leave their parents and become one, in Christ, for as long as they both shall live clearly establishes a relationship that they are not to divorce from, yet children upon reaching adulthood and entering into their own marriages are commanded to leave their parents. A wife and husband become one at marriage. A Child shall separate form it's parents to marry.

The rationale is again based on the State's compelling interest in averting the destruction of, and further to seek the preservation of a marriage. The Santosky case stated:
"For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo. For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family". Santosky v. Kramer, (1982) 455 U.S. 745, 765. (emphasis added)

There is little refuting that a spouse's interests in maintaining a marriage are "'particularly important' and 'more substantial than mere loss of money'... [and] threaten the individual involved with 'a significant deprivation of liberty' or 'stigma'". Santosky v. Kramer, (1982) 455 U.S. 745, 756. Appellant indeed faces a worse risk than the parents in Santosky. Appellant faces the complete and final destruction of his family unit itself. "Raising the standard of proof effectively counters these concerns and has both practical and symbolic consequences". Santosky v. Kramer, (1982) 455 U.S. 745, 764.
Pragmatically, it would better satisfy the interests of the State in preserving marriages in Washington as well as the interests of the parties in the same. A higher standard of proof than a preponderance is consistent with all the parties' interests. Even a petitioning spouse may be confused, deceived or in error respecting the pursuit of dissolution, (which, for a variety of reasons, Appellant holds may indeed be the case herein ), and therefore all parties are best served by a standard of proof that promotes "an accurate and just decision"; especially where subjective testimony is likely going to be the core of the evidence. Symbolically a higher standard of proof would re-elevate the institution of marriage again to its rightful place of honor respect and veneration in our society. And, a marriage, absent a mutually agreed to (i.e. consented to by respondent) petition for its dissolution, as being worthy of requiring substantial efforts towards its preservation.
It should be added for the consideration of the court that in determining whether to apply a higher standard of proof to dissolution proceedings under the Due Process Clause that Washington has a "pure" no-fault statute requiring divorces be based upon no-fault grounds alone . Washington instituted a legal environment in which a petitioning party may present and essentially say, as Respondent has essentially done in the present case: "I don't like this marriage anymore and I want out" invoking the talmaturgical and pretextual mantra of "irretrievably broken".

In Washington's current legal environment a higher standard of proof is necessary to convey to the factfinder the level of subjective certainty about factual conclusions essential to satisfy Due Process. When the termination of a marriage is at bar the social utility of accurate outcomes is extremely high. It merits the careful and delicate consideration of the court. As Herma Hill Kay has pointed out, "divorce by unilateral fiat is closer to desertion than to mutual separation."

Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each. In re Winship, (1970) 397 U.S. 357, 370; 90 S.Ct., 1068, 1076.
Few consequences of judicial action are as grave as the severance of natural family ties. Santosky v. Kramer, (1982) 455 U.S. 745, 787.
Allowing an evidentiary standard which contains a tendency to hold families together is certainly appropriate given the high social utility of natural family units. The possibility of a bad result, while never a favored outcome, is tolerated in the face of the profound losses associated with a divorce rate in excess of 50%.
No ad hoc inquiry was posed to Ms. Carlson as to why she "felt" the marriage was irreconcilably broken, or even to the question of whether she had made any substantive effort to reconcile, repair, or "retrieve" the marriage as being inextricably entwined to the logic of a spouse to draw such a conclusion. There was no testimony of Petitioner at trial on this point, just a recitation upon cue of counsel of the mantra that the marriage is "irretrievably broken".
The judicial determination below simply is not Due Process of law according to the law, therefore it must be due process according to something else. The trial court ordered the dissolution of this marriage based on almost no evidence at all. This makes Due Process of law a farce; it just isn't Due Process - if anything it is "sham process."

Good and decent public policy demands-our society demands-and Washington law should require greater procedural Due Process safeguards of the fundamental institution of marriage. This Court should grant review to determine whether the Act, in the way it is applied, violates the doctrine of procedural Due Process as guaranteed by the U.S. Constitution; Amendment 14.
II. THE ACT AS APPLIED IS AN UNCONSTITUTIONAL VIOLATION OF THE EQUAL PROTECTION CLAUSE AND OF SUBSTANTIVE DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

A. Equal Protection Clause.

The Equal Protection Clause of the U.S. Constitution; Amendment 14, requires that persons in like circumstances be given equal protection and security in the enjoyment of personal and civil rights. 8 Witkin, Constitutional Law, (Ninth Ed., 1988), Section 593, . In essence, it provides that people in similar circumstances be treated with similar or equal treatment. Under the Act, all non-consenting respondents, as a class, are unequally treated in proceedings for dissolution of marriage. Appellant is a quintessential example of that bias. In Washington, every petitioner in an action for dissolution of marriage, where the respondent does not consent, is granted dissolution of the marriage.

Non-consenting respondents in dissolution actions, that is those who challenge the issue of status of the marriage, have no hope of ultimately prevailing on the issue of status-of preserving the marriage. The question Appellant postulates that cuts to the heart of this issue is, "How many petitions for divorce in Washington state have been denied-by any court of record-since the inception of Act for want of being 'irretrievably broken'?" A recent study in California asked such a question and the answer in that thundered back was, "exactly zero". DiFonzo, No-fault Marital Dissolution: The Bitter Triumph of Naked Divorce, 31 S.D.L.Rev. 519, (1994).
The failure of Washington law to provide Equal Protection under the law for each respective litigant in dissolution actions is a violation of the Equal Protection Clause.

A law that in "practice and experience" disposes a class of persons (i.e. non-consenting respondents) to always lose a particular cause of action or issue of law could hardly be a more repugnant violation of the basic concept of Equal Protection. Even on the basis of statistical proof alone, which the courts have historically accepted as relevant in determining whether there is a violation of Equal Protection, "where the statistical proof is overwhelming, it may be sufficient to establish a prima facie case". Nowak, Constitutional Law, (3d Edition 1989) § 14.4, pg. 544,. Dissolution actions in Washington where one spouse contends that a marriage is not irretrievably broken, are one-sided, in favor of the petitioner.
A "legislature may make a reasonable classification of persons and businesses and other activities and pass special legislation applying to certain classes". 8 Witkin, Constitutional Law, (Ninth Ed., 1988), Section 599, . However, the classification must not be arbitrary, and it must be based upon some difference in the classes which has a substantial relation to a legitimate state interest. While a classification will not be overturned by the courts unless it is "palpably unreasonable", it must nonetheless not offend practical considerations of how the law is applied. As the Supreme Court said in Railway Express Agency v. New York, (1949), 336 U.S. 106: "It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered." The pragmatic reality of the Act is that all non-consenting respondents are discriminated against in that they all lose without exception. Therefore, even when applying a rational basis test, the Act is unconstitutional.

"State action" is a requisite for presenting an Equal Protection claim. Any proposed argument contemplated by Respondent contesting Appellant's Equal Protection claim can be summed up as a simplistic attempt to deny that there is State action presenting.

Notwithstanding Respondent claiming such wishful belief, State action is plainly satisfied by the act of the legislature in passing the Act, which imposed a regime of discrimination against all non-consentual respondents who challenge status under a petition for dissolution of marriage. Alternatively, it is the manner in which the Act has been applied pursuant to the analysis in Shelly v. Kraemer, (1948) 334 U.S. 1; 68 S.Ct. 836; 92 L.Ed. 1161, by the monolithic judgment of every family law trial court in Washington of rejecting every respondent contesting dissolution of status, and particularly and specifically, the lower court in the case at bar.

Appellant argues that the Act classifies persons disparately by favoring petitioners in dissolution proceedings, predominantly by the effect of it's evidentiary burden being applied in an irrationally low manner. The evidentiary burden is in fact so low that no petitioner could fail to meet it's indefinitively low requirements and therefore a discriminatory regime against all non-consenting respondents who challenge the issue of status in dissolution proceedings has been established. Appellant has demonstrated this by pointing out the fact that every non-consenting respondent who challenges the issue of status of the marriage is denied. Any refutation of this point must overcome the fact that in Washington dissolution petitions are not denied (though they may be delayed for 60 days) for want of petitioner establishing "irretrievable breakdown" of the marriage. As stated, research of the impact of the Act in California has determined, "... Trial courts under California no-fault simply refused to deny divorces under any circumstances.... [N]ot one trial court had denied a dissolution petition for want of irreconcilable differences." DiFonzo, No-fault Marital Dissolution: The Bitter Triumph of Naked Divorce; 31 S.D.L.Rev. 519, 547 & 550 (1994).

Every non-consenting respondent is denied who challenges the issue of status in dissolution proceedings. Respondent may attempt to blur this point by attempting to distinguish all respondents in dissolution's from those who are actually non-consenting and who make a challenge to status. However, as pointed out in the DiFonzo article (supra) - the statistical data is in.

Alternatively the Act violates the Equal Protection Clause in the manner in which it has been applied pursuant to Shelly v. Kraemer (supra). Under Shelly, the judiciary may imbue the actions of private individuals with state action. This occurs:
"When judges command private persons to take specific actions which would violate the Constitution if done by the State, state action will be present in the resulting harm to constitutionally recognized rights. The classic example of such a situation appeared in Shelly v. Kraemer ." Nowak, Constitutional Law, (3d Edition 1989) § 12.3,.

Where any court allows parties to a particular class of actions to prevail by invariably deciding in favor of the party on one side at bar, there is unmistakably a command favoring the rights of a disparate class of private persons. In this case it also happens to be a class of persons imbued with rights considered fundamental under the United States Constitution.
Appellant's right to maintain his marriage status is indeed fundamental. The only counter argument Respondent may attempt to make is that there is no State action depriving Appellant of any right and thus no violation of law. However, the Act and its implementation is patently a State action.

B. Substantive Due Process.

Appellant has vested fundamental rights in the marriage relationship. The Act is an arbitrary and capricious refusal of his Substantive Due Process rights protected by the U.S. Constitution; Amendment 14.
C. Appellant Has A Vested Property Right In His Marital Status.

Appellant believes this to be a case of first impression in Washington.

Appellant agrees that modifying existing grounds for divorce is indeed subject to the "reserve powers" of the state. (Appellant argues for Accommodation, See Section VI. Infra.) It is the complete deflation of all grounds for divorce that violates Appellants vested rights, whether that be in form or in substance. That is what has happened under the Act. This is in harmony with Justice Marshall's analysis in the Dartmouth case (see section III below). Marshall clearly indicated that the states were free to render legislative divorces and or modify grounds for divorce without invading the prohibition of the Contracts Clause. But, if a state were to annul all marriages or empower either party to unilaterally annul then there would be a violation of Constitutional law.

Thus there is indeed a vested right in marital status. As Justice Story himself states in his concurring opinion in Dartmouth:
"A man has just as good a right to [i.e. society with…] his wife as to the property acquired under a marriage contract. He has a legal right to her society and her fortune; and to divest such right without his default, and against his will, would be as flagrant a violation of the principles of justice as the confiscation of his own estate" Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629, 696-697.

This principle is restated in more contemporary terms by the Logan case. Justice Blackmun states:
"The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' Once that characteristic is found, the types of interests protected as 'property' are varied and, as often as not, intangible, relating 'to the whole domain of social and economic fact'." Logan v Zimmerman Brush Co., (1982) 455 U.S. 422,430, 102 S.Ct. 1148; L.Ed.2d 265.

Justice Blackmun's analysis, by keying in on intangibles, social facts, and "for cause" challenges based upon state law could hardly be a more definitive statement of the concept of marital status when placed in general terms.

Appellant does not simply challenge "irretrievable breakdown" as grounds for dissolution. Appellant also claims he is deprived of Due Process in the way the Act has been applied to the CARLSON marriage, a Christian covenant of marriage. Clearly Appellant has a property right as well as a liberty right, in his marital status and is protected from being unlawfully deprived thereof. The State has not acted in furtherance of its stated police power interests to protect the health, safety, morals and general welfare of society under the Act, i.e. to preserve marriages and families. Rather the State's interest in preserving marriages is subverted by virtue of the way the Act has been applied in practice. Sociological data concurs (See Section IV, infra.). Appellant has been deprived a vested property right and liberty interest without Due Process of law. The opportunity is now available to reverse tide that the Act has birthed and rightfully bring Due Process back to the domestic relations arena.

III. THE ACT VIOLATES ARTICLE I § 10 OF THE UNITED STATES CONSTITUTION, THE CONTRACTS CLAUSE.

A. Marriage Is A Contract.

Marriage is at once a contract as well as a relationship and a social institution. Whether marriage is a contract which falls under the aegis of the Contracts Clause of the United States Constitution is the question at issue. Justice Marshall's Dartmouth opinion expresses that marriage is a contract, i.e.:

That even marriage is a contract.... When any state legislature shall pass an act annulling all marriage contracts.... Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629, 628 - 629. (emphasis added).

Marriage is a contract. , Where a marriage is a covenant, i.e. an expression of a sincerely held religious faith, it is also more than a contract (See Sections V. and VI. herein, infra.)

B. A Marriage Contract Falls Under The Prohibition Of The Contracts Clause Of The United States Constitution Where The Legislature Acts To Annul All Marriages Or Allows Either Party To So Annul.

The seminal authority on the issue of marriage as a contract and its relevance to the Contracts Clause is Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629, 629 wherein Chief Justice Marshall stated in pertinent part:

"The [Contracts Clause] of the constitution never has been understood to embrace other contracts, than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general right of the legislature to legislate on the subject of divorces. Those acts enable some tribunals, not to impair a marriage contract, but to liberate one of the parties, because it has been broken by the other. When any state legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it, without the consent of the other, it will be time enough to inquire, whether such an act be constitutional. Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629, 629. (emphasis added).

A marriage contract is plainly a contract for value and which confers rights that may be asserted in a court of justice. Marshall's analysis in Dartmouth plainly puts marriage contracts under the ambit of the Contracts Clause. Moreover, when a state legislature passes an act changing its marital laws in some measure, or to render a divorce in a particular case, it is not an impairment of contracts because "[t]hose acts enable some tribunals, not to impair a marriage contract, but to liberate one of the parties, because it has been broken by the other." Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629, 629. In his concurring opinion in Dartmouth, with greater clarity, Justice Story stated:
"the prohibition in the Constitution of the United States, which alone gives the court jurisdiction in this case, did not extend to grants of political power; to contracts concerning the internal government and police of a sovereign state. Nor does it extend to contracts which relate merely to matter of civil institution, even of a private nature. Thus, marriage is a contract, and a private contract; ... divorces unquestionably impair the obligation of the nuptial contract; they change the relations of the marriage state, without the consent of both the parties, and thus come clearly within the letter of the prohibition. But surely, no one will contend, that there is locked up in this mystical clause of the constitution a prohibition to the states to grant divorces, a power peculiarly appropriate to domestic legislation, and which has been exercised in every age and nation where civilization has produced that corruption of manners, which, unfortunately, requires this remedy. As to the case of the contract of marriage, which the argument supposes not to be within the reach of the prohibitory clause, because it is matter of civil institution, I profess not to feel the weight of the reason assigned for the exception. In a legal sense, all contracts, recognized as valid in any country, may be properly said to be matters of civil institution, since they obtain their obligation and construction jure loci contractus.... A general law, regulating divorces from the contract of marriage, like a law regulating remedies in other cases of breaches of contracts, is not necessarily a law impairing the obligation of such a contract. (a) It may be the only effectual mode of enforcing the obligations of the contract on both sides.... Thus far the contract of marriage has been considered with reference to general laws regulating divorces upon breaches of that contract. But if the argument means to assert, that the legislative power to dissolve such a contract, without such a breach on either side, against the wishes of the parties [note: plurality of 'parties'…], and without any judicial inquiry to ascertain a breach, I certainly am not prepared to admit such a power, or that its exercise would not entrench upon the prohibition of the constitution." Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629 at 696. (emphasis added).

Unfortunately the Maynard Court and its progeny have failed to understand Justice Marshall's and Justice Story's analysis and ruled, contrary to Dartmouth, that marriage contracts are not subject to the Contracts Clause. Justice Marshall perceptively foresaw the possibility that some State of the Union might at some time over-exercise its general authority to legislate respecting marriages and "pass an act annulling all marriage contracts, or allowing either party to annul it, without the consent of the other." Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629, 629.
That day has come. The Act, so far as it has been applied judicially, does just that. Washington has over-exercised its general authority to legislate respecting dissolution of marriage by passing an act that allows either spouse to annul the marriage without the consent of the other. It allows either spouse to terminate a marriage unilaterally by repeating no more than two talmaturgical words - "irretrievably broken."

The key language of Justice Marshall in Dartmouth, goes to the core of Appellants assertion that marriage is a contract under the Contracts clause:
When any state legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it, without the consent of the other, it will be time enough to inquire, whether such an act be constitutional. Dartmouth College v. Woodward, (1819) 4 Wheat 518, 4 L. Ed, 629, 629. (emphasis added).

Appellant has not asserted that Washington is not empowered by the state legislature to change the grounds for divorce or modify the laws respecting thereto or even render a divorce by legislative act. Justice Marshall emphatically spoke to this by stating, "…that even marriage is a contract, and its obligations are affected by the laws respecting divorces." However, Justice Marshall was careful to distinguish legislative acts which render a divorce. Maynard v. Hill, (1887) 125 U.S. 190; 8 S.Ct. 723; 31 L.Ed. 654 is a good example of this. The reason was it had been a practice of Marshall's for legislatures to dissolve marriages, but Marshall did not end the discussion with that. He was delicate enough to add in the caveat that "[w]hen any state legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it, without the consent of the other, it will be time enough to inquire, whether such an act be constitutional."

In resolving the conflict of Marshall's two essential points respecting marriages and their relation to the Contracts Clause both the core principal and a harmony of the cases that followed Dartmouth emerge. The principle, which Marshall delivers in his Dartmouth analysis, is that marriage is contract, which in a broad, institutional sense would fall under the Contracts Clause. However, because state legislatures retain power respecting State issues, such as marriage, it may legislatively act to render a divorce or even modify grounds for divorce without disparaging the prohibition of the Contracts Clause. However, when a State legislature acts to effectively vitiate the entire social institution of marriage by empowering one party to unilaterally annul the marriage (w/out grounds, i.e. by "no fault" divorce) then that will rise to a violation of Constitutional proportions. That is the case now at issue before this court. The Act by its nature or in the way it has been applied violates the Contracts Clause by empowering either spouse to dissolve (annul) the marriage on-demand.
The time has indeed come for the Court to inquire into the Constitutionality of the Act as a violation of the Contracts Clause in that the legislature has imposed on every marriage in the jurisdiction the circumstance of "allowing either party to annul it, without the consent of the other".

The essential point Marshall was making in Dartmouth is that State legislatures have general authority, within a Constitutional framework, to legislate respecting marriages, including the rendering of legislative divorces, a practice of Marshall's day, without encroaching on the Contracts Clause. Legislative acts in derogation of a marriage contract do not violate the Contacts Clause because they are in nature a remedy, not an "impairment". However, as Chief Justice Marshall and Justice Story agreed in their respective opinions in Dartmouth, if a State legislature ever acted to annul "all marriage contracts, or [allow] either party to annul it, without the consent of the other" issues as to the constitutionality of such an act would be presented.

Marshall unmistakably believed that if a State legislature ever acted so as to dilute marriage contracts to the point that either spouse could unilaterally end the marriage, then marriage contracts would be subject to the prohibition of the Contracts Clause. Such is the case with the Act herein. Traditional marriage has been diluted by the Act from the sacred and honorable status of being a covenant, i.e. being for life, to being merely a contract, and that even being terminable by the divorce-facilitation policy of "divorce on demand".
The Act debases the institution of marriage by allowing either party to unilaterally "annul" the marriage, as well as by perverting the State's compelling interest in the preservation of the institution of marriage.

The time has come for this Court to inquire into the Constitutionality of the Act and determine whether it violates the Contracts Clause in that the legislature has imposed on every marriage in the jurisdiction the circumstance of "allowing either party to annul it, without the consent of the other."
C. Maynard v. Hill Is Distinguishable.

There is a line of cases, which hold that marriage contracts do not come under the purview of the Contracts Clause of the United States Constitution; Article 1, Section 10. (See, e.g. In re Marriage of Walton, 28 C.A.3d 108, 112, 104 Cal.Rptr. 472; Ikuta v. Ikuta, (1950) 97 C.A.2d 787, 790, 218 P.2d 854; Adams v. Palmer, 51 Me. 480, 481; Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815). These cases, ultimately draw their authority from Maynard v. Hill, (supra) and none of them analyze the authority Maynard itself rested its holding on - Dartmouth College v. Woodward, (supra).

The essential holding of Maynard, consonant with Dartmouth, is that a divorce rendered by legislative act does not fall under the prohibition of the Contracts Clause. The Maynard court stated, "... we are clear that marriage is not a contract within the meaning of the prohibition [of the Contracts Clause]." That statement is true under the facts of the Maynard case because Maynard only adjudicated the narrow issue of whether a divorce rendered by legislative act is prohibited by the Contacts Clause. Maynard did not countenance the deeper question of whether legislation, which allows either spouse to annul a marriage contract, could be unconstitutional under the Contracts Clause.

The Act falls subject to the constitutional warnings of Justice Marshall in Dartmouth because it allows either spouse to unilaterally annul the marriage contract. In fact, a California court decision supported that claim in its analysis in Mott v. Mott, (1890), 82 Cal. 413, 417, it stated that the "legal effect of a decree of divorce ... is to annul [the marriage] contract and absolve the parties from the duties and obligations which it imposes." Therefore, if all spouses in Washington, and in any other jurisdiction that has enacted similar statutes as the Act, are empowered to unilaterally rescind their marriage contract by divorce on demand, it is a de facto power to unilaterally annul and that violates the Contracts Clause.

The effect of the Act is to promote divorce and that presents a major public policy issue that must be resolved. California initially brought "no-fault" divorce to the United States in 1969 and "no-fault" divorce was thereafter embraced by virtually every other state legislature in the Union, including Washington in 1973. Washington should now rightly resolve this question. The Act is an unconstitutional violation of the Contracts Clause and this Court should address this important issue.

IV. SOCIOLOGICAL OUTCOMES OF THE ACT.

In 1964, prior to the enacting of the California Act (1969) that sparked the Uniform Act (1970) that Washington subsequently adopted (1973), then California Governor Edmund G. Brown charged the Commission on the Family and said:
"Whatever the cause of the growing divorce rate-divorce produces not only broken homes but also broken lives. It erodes the very foundation of our society, the family... Society is paying an almost intolerable price for this breakdown of family life-in terms both of human misery and of public financial resources." (emphasis added).

Governor Brown's prophetic appeal to the commission echoes throughout this petition, which seeks not merely the preservation of one family, but hope for all Washington marriages.

A team of University of Oklahoma researchers found that no-fault divorce laws had a significant effect, increasing the divorce rate across the 50 states, see e.g. Frank, Berman & Mazur-Hart, No fault Divorce and the Divorce Rate: The Nebraska Experience - An interrupted Time Series Analysis and Commentary, 58 Neb. L. Rev. 1, 49 (1978); also see Journal of Marriage and the Family, at 477-488, May 1995. The divorce rate in California Governor Brown termed, as:
"causing the 'breakdown of family', was approximately 3.2 percent …and was peaking above 6 percent during the mid-seventies. …Thus it cannot be overlooked that 'the best evidence indicates that in at least some states the adoption of no-fault divorce was a significant factor in increasing divorce rates'." Wardle, No-fault Divorce and the Divorce Conundrum, BYU Law Rev., 79, 119 (1991).

Women on average suffer a 30% drop in income post divorce. Many men can expect a 42% rise in income post divorce. For women this has been called an economic trajectory of "falling from Grace." Newman, Falling from Grace: The Experience of Downward Mobility in the American Middle Class, (1988). Women do not recover their pre-divorce standard of living, on average, for five years. The economic fallout for women post-divorce is analogous to experiencing the great depression. No-fault divorce has inflicted a pejorative effect on women's condition post divorce-and widened the income gap between men and women. Many men, who are respondents in divorce actions, as is the case for Mr. Carlson, have also suffered economic fallout analogous to what has statistically been more common to women post divorce.

Children suffer the most under the Act. A recent study revealed that "divorce is a cumulative experience for the child; its impact increases over time." Thus, children of divorce feel the psychological fallout for decades, well into adulthood, contrary to popularized belief that children get over their parents' divorce. Further, children from broken homes are likely to suffer multiple post-divorce psychological and behavioral sequela.

In short, "no-fault divorce laws fail to balance the compelling interest of the State in marriage stability goals with divorce facilitation policy." Wardle, No-fault Divorce and the Divorce Conundrum, BYU Law Rev., 79, 119 (1991). The sociological data exposing "no-fault divorce" as a failed social policy, and supporting Appellant's legal arguments, increase each day. Where such sociological evidence reinforce and fortify otherwise competent and persuasive legal argument, it should be highly persuasive to the court when rendering its opinion, particularly where the immense concerns of family are at issue.

"Married life… has become increasingly 'brutish, nasty, and short…'. The wild oats sown in the course of the 1960s sexual revolution has produced a great forest of tangled structural, moral, and intellectual thorn that we seem almost powerless to cut down." This Court is not powerless to redress this problem.

Dr. James C. Dobson, one of the loudest and clearest Christian voices for preservation and edification of the family in America, recently (Summer of 2004) writes the following admonition to American marriages and families:
"We must remember that behind the public policy debates and media influences are real human beings who are affected adversely by the disintegration of families. Among them are millions of hurting people-husbands, wives, and children-for whom everything stable and predictable has been shattered. …the breakup of families results in millions of pitiful children who cry themselves to sleep at night because they miss their mom or their dad… This is the legacy of divorce and sexual promiscuity. Social experimentation has produced these tiny victims who cry out for compassion and understanding." Dobson, James C. Marriage Under Fire: Why We Must Win This Battle, at pg. 36-37 (Multnomah Publishers, Inc. 2004)

Dr. Dobson further declares the major point of change in American divorce law:
"To understand more about how marriage came to be so fragile after it had survived for so long, we have to take a stroll through recent history. One of the earliest and most damaging blows came in 1969, when the world's first no-fault divorce law, developed by radical family-law theorists, was signed into law in California. With the stroke of a pen, 'till death do us part' became optional. Suddenly, it was easier for a spouse to legally get out of a thirty-year marriage than it was to break a pool maintenance contract! In the years that followed, every state adopted some form of no fault divorce, and for the first time in our nations history, the understanding of marriage as a permanent social and spiritual contract was no longer backed by law." Dobson, James C. Marriage Under Fire: Why We Must Win This Battle, at pg. 37-38 (Multnomah Publishers, Inc. 2004)

Finally Dr. Dobson summarizes the sociological impact of the breakup of traditional marriage and the natural family:
"More than ten thousand studies have concluded that kids do best when they are raised by loving and committed mothers and fathers. They are less likely to be on illegal drugs, less likely to be retained in a grade, less likely to drop out of school, less likely to commit suicide, less likely to be in poverty, less likely to become juvenile delinquents, and, for the girls, less likely to become teen mothers. They are healthier both emotionally and physically, even thirty years later, than those not so blessed with traditional parents. Social scientists have been surprisingly consistent in warning about the impact of fractured families." Dobson, James C. Marriage Under Fire: Why We Must Win This Battle, at pg. 54 (Multnomah Publishers, Inc. 2004)

The Act offends basic principles of Constitutional law and the established values of our society. The Courts must address this conflict, and Appellant respectfully asks this Court to render its ruling in accordance with public policy which calls for substantive efforts to be made towards the preservation of marriages and families and the safeguard of the Constitutional guarantees to the rights of life, liberty, the pursuit of happiness, the Free Exercise of Religion; and the rights of Due Process of law and Equal Protection, etc.

V. THE ACT AS APPLIED IS AN UNCONSTITUTIONAL VIOLATION OF THE FREE EXERCISE CLAUSE UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION.

The Due Process Clause of the Fourteenth Amendment, which provides that no person may be deprived of "life, liberty or property without due process of law," applies the Free Exercise Clause of the First Amendment to state and local governments.
The Free Exercise Clause prohibits laws that impose a substantial burden on religious exercise. Cantwell v. Connecticut, (1940) 310 U.S. 296.

Where (1) a claimant's conduct is motivated by sincere religious belief and (2) the state has imposed a substantial burden on that conduct, the claimant will prevail unless the state can show that the burden on the claimant's Free Exercise of religion (1) is in the furtherance of a compelling governmental interest and (2) is the least restrictive means of achieving that interest. Thus, the claimant will prevail in spite of a state's compelling interest if a means of furthering that interest can be found that imposes a lesser burden on the claimant's Free Exercise of religion. It is important to note that a religious belief need not be reasonable, logical, or acceptable to others; it need only be sincere.

Christianity, through the history of the Church is broadly referred to herein as consisting, in considerable part, of the following sects/denominations: Catholic ("Roman" and "Eastern Orthodox/Greek", the Church Beginning with the Roman Emperor Constantine); Protestant (beginning with the Church of the Protestant Reformation by Luther, Calvin, Wesley, et.al.); and various other congregations of what may be referred to as Evangelical, "Holiness", or Pentecostal in their origin.

Ronald and E Carlson were married in a "Church of the Nazarene" sanctuary, their covenant marriage vows of their mutually and sincerely held Christian faith being duly solemnized by an ordained minister and pastor (Rev. William J. Gunter) of the Church of the Nazarene, an accepted Christian denomination. The Church of the Nazarene Manual, being an authoritative guide for action[s] of the church (Along with the Bible as supreme guide, illuminated by the Holy Spirit), clearly establishes the Christian covenant of marriage with the following language:
"To emphasize the sanctity of marriage and the sacredness of the Christian home and to point out the problems and evils of divorce. In particular, stress should be laid upon the biblical plan for marriage as a lifelong covenant, to be broken only by death." Church of the Nazarene Manual, 1997-2001, article 337.2, (Nazarene Publishing House, Kansas City Missouri, 1997) (emphasis added.)

"The Christian family, knit together in a common bond through Jesus Christ, is a circle of love, fellowship and worship to be earnestly cultivated in a society in which family ties are easily dissolved [i.e., via "no-fault" divorce]. …In particular, we urge upon the ministry the importance of teaching clearly the biblical plan of the permanence of marriage." …"The marriage covenant is morally binding so long as both shall live, and breaking of it is a breach of the divine plan of the permanence of marriage." …"Couples having serious marital problems are urged to seek counsel and guidance of their pastor and/or any other appropriate spiritual leaders. Failure to comply with this procedure in good faith and with sincere endeavor to seek a Christian solution [i.e. reconciliation], and subsequent attainment of divorce and remarriage, makes one or both parties subject to possible [church] discipline…" Church of the Nazarene Manual, 1997-2001, article 35. et.seq., (Nazarene Publishing House, Kansas City Missouri, 1997) (emphasis added.)

A. The Biblical Basis for the Covenant of Marriage Being a Core Expression of the Christian Faith.

BIBLE/SCRIPTURE …
The Christian Covenant of Marriage is a solemn commitment to permanence. This is the express will of God, Christ Jesus, Our Creator-It is written, according to the Laws of Nature and of Natures God.


Author Gary Thomas, of Bellingham, Washington (also the author of 'Sacred Marriage', 'Sacred Parenting', and 'Authentic Faith', all by published by Zondervan), in an article titled 'A Marriage After God's Own Heart', proclaims,
"…The Bible uses marital metaphors to describe the story of God's relationship with Israel and Jesus' relationship with the church. Understanding these analogies is crucial, as they will help us construct the foundation upon which a truly Christian marriage is built. …Marriage, can…be a place of continuing conformity to Christ's character. God accomplishes this transformation by inviting us into a covenant relationship. That relationship is marked by permanency…

Hosea 2:19 says, 'I will betroth you to me forever'. There's no wavering here, no 'I'll love you if you keep making me happy,' or 'I'll stay with you as long as you behave.' It's an unconditional commitment to accept the other person. Our commitments to our mates, like God's to His people, is absolute and permanent. …Our covenant with our spouses is the catalyst for each decision to keep loving him or her. …The opportunity to cultivate love for one another, year in and year out, is one of the unique privileges of the marriage covenant-a covenant that models and reflects God's reconciling love. …God promises to restore us and make us beautiful, to redeem us from our sin and to draw others to Him by displaying His glory in our lives. He accomplishes this through the reconciling work of Jesus: 'God…reconciled us to himself through Christ and gave us the ministry of reconciliation' (2nd Corinthians 5:18). Our marriages offer a ready-made context for us to apply this truth. When we relate to our spouses the way God relates to us, we demonstrate His reconciling power to those who don't know Him. Everything we say and do should embody this ministry of reconciliation. A marriage marked by discord, animosity, or the threat of divorce fails to glorify God. But a marriage marked by forgiveness, determination to resolve conflict, and a growing sense of unity will attract those who see it. This perspective on marriage challenges our self-centered views of it as something that exists primarily for our happiness. If [a] marriage is only about being happy, we will maintain it as long as our earthly comforts, desires, and expectations are met.

In the God-centered view, however, we're challenged to preserve our marriages because they bring glory to God and point a sinful world to a reconciling Creator. So rather than asking 'What will make me happy?' ask, "What will glorify God and reflect His love?' To do [this], [we] have to die to [our] desires. [We] have to crucify the narcissistic inclination to measure every action and decision by whatis most appealing to 'me'. All of us enter marriage with unfinished business and past hurts. That baggage can make a marriage weary at times. But instead of divorcing your spouse, consider divorcing your faulty views of marriage. Instead of trying to change your spouse, ask how your marriage can change you…the first [primary]reason [to] keep [a] marriage together is because doing so reflects God's redeeming love. …God's love for Israel and Christ's love for the church show us how our marriages can be transforming relationships of delight and reconciliation."

-"What God Has Joined Together: A Marriage After God's Own Heart" Discipleship Journal, Issue 142 (July/August 2004, The Navigators/ NavPress Colorado Springs, CO): Special Section pp. 44-50. (emphasis added.)

Author Adam R. Holz, Associate Editor of the Discipleship Journal, clearly defines the Christian covenant of marriage in contrast to the secular idea that marriage is merely a contract, "…Our culture tends to treat marriage as a contract-an agreement between two people that can be broken if either party feels its terms have been violated. Though most people do not take divorce lightly, many do enter marriage with the idea that the back door of divorce is always available if the relationship doesn't 'work out'. In contrast, Scripture teaches us that marriage is so much more than a civil agreement; it's a lifelong union. One of the key texts that helps us understand the binding nature of the marriage covenant is Malachi 2:13-16:
'Another thing you do: You flood the LORD's alter with tears. You weep and wail because he no longer pays attention to your offerings or accepts them with pleasure from your hands. You ask, 'Why?' It is because the LORD is acting as the witness between you and the wife of your youth, because you have broken faith with her, though she is your partner, the wife of your marriage covenant. Has not the LORD made them one? In flesh and spirit they are his. And why one? Because he [is] seeking godly offspring. So guard yourself in your spirit, and do not break faith with the wife of your youth. 'I hate divorce,'says the LORD God of Israel, 'And I hate a man's covering himself with violence as well as his garment,' says the LORD Almighty. So guard yourself in your spirit, and do not break faith.'

What observations can we make about the nature of the marriage covenant? First, the bond between a man and a wife is indeed a covenant. It is a binding promise both partners make in faith to one another. Second, the marriage covenant is a promise that two people make to one another with God as a witness. It's not merely a contract, but a solemn commitment before their Maker. God's relational power and presence mysteriously bring two people together and make them one. …[T]he marriage covenant is a binding, permanent union in God's eyes… Malachi likens the breaking of that covenant with 'covering [oneself] with violence' (v.16). Twice the prophet warns his readers to 'guard yourself in your spirit, and do not break faith' (vv. 15,16). Clearly, he understood that people would be tempted to disregard the marriage covenant. The marriage covenant, then, is the bedrock upon which a lifelong relationship between a man and a woman can be built. It penetrates deep and requires much of both spouses. Yet it offers life, protection, and security in a way that no mere contract can. …As I've considered the implications of the marriage covenant in a real relationship however, I've become more aware of how committed I am to myself. A deep stream of independence and self-sufficiency [pride] flows in my soul, reinforced by three decades of learning to make life work on my own. Our culture's love affair with individualism has shaped me much more profoundly than I knew. The covenant of marriage demands that I lay down my lifelong commitment to myself for the sake of another. God does not grant me permission [as a Christian] to renege on my promise if disappointment or suffering in marriage seem more than I can bear. The marriage covenant is a solemn oath before God… '…'til death do us part'."

-"What God Has Joined Together: 'A Marriage After God's Own Heart', 'The Covenant of Marriage-'Til Death Do Us Part', 'When Souls Mate', 'Toward a More Perfect Union'." Discipleship Journal, Issue 142 (July/August 2004, The Navigators/ NavPress Colorado Springs, CO): Special Section pg. 46. (emphasis added.)

The final contribution to this special section, author Peter Mayberry, Publisher of NavPress Periodicals, exhorts Christians in the covenant of marriage of the need for transformation through repentance and forgiveness, "…If we are to make any progress in reaching a deeper level with one another, we must deal with the root issue of selfishness. As long as our selfishness drives us, real growth will be hampered. Transformation is an anticipated part of the believer's life. Paul urges [us] to 'be transformed by the renewing of your mind' (Romans 12:2). …Transformation is about entrusting my fallen, self-protective nature to God. ...[In a broken marriage] Both of us [justify] our own unhealthy withdrawal from one another. Moving through our conflict require[s] a number of steps. …Most significantly, we [have] to agree …to move into health instead of staying in the sickness of [a] relational mess. This requires repentance and forgiveness-which [drives] us to the cross, the only remedy for sin. Transformation begins by recognizing and repenting of the ways we've behaved selfishly in our marriages. Repentance is central to growth and change in every area of our lives. In Revelation, Jesus calls believers …to 'repent and do the deed you did at first' (Revelation 2:5). Throughout our lives, we need to keep turning back to Jesus from our sin. This is crucial to growing in intimacy with our spouses. …The challenge is laying hold of the humility that enables [each of us] to confess and ask forgiveness of [our spouse] when our sin against them is revealed. After one spouse confesses, the one who has been wronged has to express forgiveness. We can't move forward together without it, as Jesus made clear: 'But if you do not forgive men, then your Father will not forgive your transgressions" (Matthew 6:15, NASB). God supernaturally provides the grace we need to move through the disappointments, hurts, and grief of our brokenness when we repent and forgive one another."
-"What God Has Joined Together: 'A Marriage After God's Own Heart','The Covenant of Marriage-'Til Death Do Us Part', 'When Souls Mate', 'Toward a More Perfect Union'." Discipleship Journal, Issue 142 (July/August 2004, The Navigators/ NavPress Colorado Springs, CO): Special Section pp. 64-65.

The Christian Covenant of Marriage (between two professed believers, i.e. "Christians") is not to be put asunder by man, or by man's law. God's hates Divorce (as He hates all sin…). Only in the Case of an "unbeliever" departing from (i.e. "abandoning") his/her believing spouse (that is in the case of a "mixed marriage" consisting of a believing spouse and an unbelieving spouse) can the "abandoned" spouse seek that he/she be granted a certificate of divorce-as though the departed spouse, an unbeliever, had petitioned for it-recognizing his/her state of being left/abandoned by an "unbelieving" spouse. This scenario is truly only available to the Christian where the leaving spouse refuses to repent, return/reconcile with the spouse he/she has departed from, and live together as husband and wife as God, Christ Jesus, clearly commands, and the apostle Paul, by the Holy Spirit directs. And though this remedy is available, for theabandoned spouse, it is not commanded, especially where the departing spouse is a known/professed believer. Both Ronald and E Carlson are known/professed Christians, they are "believers". Therefore, since E is a believer, and she has separated herself from Ronald, reconciliation is the only Christian solution-for they may either reconcile or remain separated as they are.

VI. THE ACT PLACES A SUBSTANTIAL BURDEN ON THE FREE EXERCISE CLAUSE OF RELIGION UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRING AN ACCOMODATION FOR THE FREE EXERCISE OF RELIGION.

Professor Laurence Tribe has identified when exemptions or exceptions from laws of general application in order to avoid placing burdens on religious exercise may be created. L. Tribe, American Constitutional Law, (1988) § 14.4.
Unless a government action (1) is justified by a compelling governmental interest, and (2) is the least restrictive means of accomplishing that interest, the government action may require an accommodation of religion. The overriding governmental interest at issue is the preservation of marriages and natural families. The Act in its current form is certainly not the least restrictive means of accomplishing these interests. The Act places a substantial burden on the freedom of religious exercise in the context of the Christian covenant of marriage.


The Act in its current form makes no accommodation for the free exercise of the Christian covenant of marriage (nor does it accommodate the covenantal marriage vows as expressed by many adherents of other recognized faiths/religions, i.e. Judaism, Islam, Buddhism, or Hinduism, et.al.). Accommodation for the Free Exercise of religion under the Act is therefore required. This should be accomplished thru a recognition of the state that when its citizens have entered the institution of marriage, by mutual covenant vows (their marriage at once being a contract and more than a contract) by the free exercise of the tenets of their sincerely held religious faith(s)-i.e. Christian, Jewish, Islamic, inter.alia.-the right to this free exercise may be preserved without burden or the interference of government that the Act currently imposes.

In 1997, the state of Louisiana recognized that a marriage may be either a civil contract of marriage or a covenant marriage determinedby how the couple has entered into the marital relationship (i.e. solemnization by religious rite/ceremony, etc.) and has legislated this concept of a covenant of marriage. Appellant herein seeks relief in the form of an accommodation, under the Act or instead of the Act, allowing the Free Exercise of religion by establishing a recognition of a covenant marriage, i.e. the CARLSON's Christian covenant of marriage, inter.alia., indissoluble by a mere "unilateral utterance" of one of the spouses of the covenant that the marriage is "irretrievably broken". Such an accommodation would best serve the public policy of promoting the preservation marriages and families, by taking the matter seriously, and preserve the most paramount and fundamental rights to the free expression of religion under the U.S. Constitution;

Amendment 1. Such an accommodation need not eradicate the system of no-fault divorce, but rather, establish that when a man and a woman have freely and mutually entered into the estate of matrimony by the rite(s) of a sincerely held religious faith, that the marriage is valid, and recognized as a covenant marriage by the state, and the tenets of that faith (i.e. Scripture(s), Catechism(s), Manual(s) and by-laws, etc.) shall establish the grounds, if any, for seeking a decree of divorce, annulment, or dissolution of the marriage. (generally accepted in much of Christianity where there is persistent, i.e. unrepented of, adultery/fornication, or in the case of an abandonment of the marriage by an "unbelieving" spouse. This type of accommodation would not be an establishment of a "state religion", nor would it be an entanglement with religion, but such an accommodation would rather realize the constitutional protection of the freedom of religious expression federally guaranteed to the citizens of this state, thus meeting constitutional muster. It would allow for the state to recognize a "CIVIL contract of marriage" alongside a religious/faith based "COVENANT union of marriage"-the latter being at once a contract and more than a contract.
Consider the following scenarios. If Mr. Adam and Ms. Eve approach the court to be married and a commissioner or "justice of the peace" (or say a captain of a vessel at sea, etc.) solemnizes their marriage (solemnization not including religious/faith ceremony expression), then it is a decidedly a CIVIL contract of marriage, established by the state and, unless there exists a valid "pre-nuptial agreement" to the contrary, "no-fault" divorce statutes may be applied to its possible future dissolution. However, In the alternative, If Adam and Eve (as is the case of the CARLSON marriage) enter into a COVENANT marriage union solemnized before or in a religious organization or congregation, according to the established ritual commonly practiced therein , and solemnized by a regularly licensed or ordained minister or priest of that recognized church or religious denomination , then the established tenets of their sincerely held faith/religious expression should, unless otherwise expressly allowed by the tenets of their mutually expressed faith/religion (or valid pre-nuptial agreement), make "no-fault" divorce statutes, as under the current Act unavailable. (SCRIPTURE MAY ALLOW FOR DIVORCE UNDER CERTAIN GROUNDS/FAULT, BUT NOT WITH "NO-FAULT")

Appellant postulates that for the vast majority of persons who enter into a covenant of marriage solemnized before or in a religious organization or congregation, according to the established ritual commonly practiced therein, and solemnized by a regularly licensed or ordained minister or priest of that recognized church or religious denomination, and who are subsequently served with divorce papers, would probably not have married if their spouse (who is now "unilaterally" seeking a "no-fault" divorce) would have insisted, at the "alter", that the marriage be entered into under a "as long as I want to remain married" standard. Yet, once the two enter into the covenant of marriage, becoming one by mutual, bilateral vows of permanence, i.e. "for as long as we both shall live" , their marriage covenant by definition precludes a subsequent "no-fault" divorce/dissolution as a remedy. This is the case for the CARLSON marriage covenant.

There is no argument that the CARLSON marriage, even in spite of its human frailties, is a "Christian" covenant marriage. And in Christ, all is/are retrievable, redeemable, reconcilable, and "workable", i.e. forgivable (except for the one who blasphemes the Holy Spirit-i.e. one who attributes the work of God through Jesus Christ to the Devil/Satan.) by repentance. The CARLSON marriage is a Christian marriage covenant and is therefore not, as long as they both shall live, "irretrievably broken".

RCW 26.04.120 recognizes that marriages "solemnized before or in any religious organization or congregation, according to the establishedritual or form commonly practiced therein, are valid…." No known argument can be postulated that this is an establishment or entanglement with religion by the state. Likewise, a law recognizing that, for some (Appellant postulates that this is a truism for the majority of marriages in America) marriage is a sacred institution,i.e. a holy "covenant", and that when this "covenant" state of matrimony is publicly entered into by a man and a woman, by a mutually held sincere religious expression, a voluntarily union is created that, by the nature and content of the marriage vows, as a rule-with few exceptions, places the "covenant" marriage out of reach of "no-fault divorce" that is offered by the state to the purely secular or civil status of being married by the state in a "civil contract" of marriage. The "Christian" covenant of marriage is patently such a covenant marriage. One could argue, that if a spouse to such a covenant marriage were to publicly (i.e. on the record, in a court of law) and sincerely renounce/recant his/her previously sincere public profession of faith, then the secular/civil remedy offered under "no-fault" divorce statutes, such as the Act, would be available in order to release the abandoned spouse from the marriage, i.e. by the abandoned spouse "let[ting] the unbeliever depart."

In the absence of a sincere public recanting/renouncement of one's "previously held" faith/religion (i.e. Christianity) to which theyhave established and expressed publicly in the profession made by their covenant marriage vows (because for the Christian, a spouse is not to depart/divorce his/her spouse. But even if a spouse-being a believer-does commit the sin of adultery or divorce, that spouse shall be reconciled to the marriage , for the Law of God binds them in marriage as long as they both shall live.)

Therefore, "No-fault" divorce cannot apply to the "Christian" covenant of marriage for the marriage cannot at once be both "irretrievably broken" and "Christian".

A marriage that is merely a civil contract, originating out of a purely secular humanist ideology, is subjected to the spirit of moral relativism that presently seeks to dominate our culture attempting to silence the voice of the Founders of our country that cries out from the heart of Our Republic. This voice is echoed in the chorus of the souls from the untold millions of its citizens, of both past and present, calling for a return to the "Biblical Judeo-Christian Bedrock", i.e. the "Chief Cornerstone"-"the Redeemer of Mankind", upon which this truly great nation was conceived, then born, and has survived for over 200 years. (One could postulate that "We the People" were "born again", in that we were already a child of England/Europe upon our founding, our "re-birth".) Appellant contends that "We the People", despite the dark pronouncement of a disillusioned minority, are not dead yet!

WE ARE A CHRISTIAN NATION

"There is an unbroken History of official acknowledgement by all the three branches of government of the role of religion in American life….

The Constitution does not require a complete separation of church and state. It affirmatively mandates accommodation, not merely tolerance, of all religions and forbids hostility towards any." Lynch v. Donnelly, (1985) 465 U.S. 668, 669-670.

The Supreme Court has sought to clarify the foundation of Our "Christian" Republic with its numerous opinions:
"The plan [public education act]… proposed is anti-Christian, and therefore repugnant to the law… The purest principles of morality are to be taught. Where are they found? Whoever searches for them must go to the source from which a Christian man derives his faith-the Bible…. There is an obligation to teach what the Bible alone can teach, viz. a pure system of morality… Both in the Old and New Testaments……It is also said, and truly that the Christian Religion is part of the common law of Pennsylvania…." Vidal v. Girard's Executors, (1844) 43 U.S. 126, 132.

"[T]he family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; [the family is] the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement." Murphy v. Ramsey & Others, (1885) 144 U.S. 15, 45. (emphasis added.)

Further, the High Court declares the basis for it's rejecting bigamy and polygamy:
"Bigamy and polygamy are crimes by the laws of all …Christian countries. They are crimes of the laws of the United States... They tend to destroy the purity of the marital relation…
To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind.
There have been sects which denied as part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of its members….
Should a sect of either of these kinds [denying marriage or advocating promiscuous intercourse] ever find its way into this country, …no heed would be given to the pretence that… their supporters could be protected in their exercise by the Constitution of the United States.

Probably never before in the history of this country has it been seriously contended that the whole of punitive power of the government for acts, recognized by the general consent of the Christian world…must be suspended in order that the tenets of a religious sect… may be carried out without hindrance." Davis v. Beason, (1890) 133 U.S. 333, 341-343, 348.

Then even more specifically the High Court declares the basis for rejecting polygamy as being against the spirit of Christianity:
"It [polygamy] is contrary to the spirit of Christianity and the civilization which Christianity has produced in the Western world." The Church of Jesus Christ of Latter Day Saints v. United States, (1890) 136 U.S. 1.

Then in what may be the clearest defense of the fact that we are a Christian Nation, being emphatically declared by Our Highest Court, over a century after Our Founding:
"Our laws and our institutions must necessarily be based upon and embody the teachings of the Redeemer of mankind. It is impossible that it should be otherwise; and in this sense and to this extent our civilization and our institutions are emphatically Christian.
No purpose of action against religion [Christianity] can be imputed to any legislation, state or national, because this is a religious [Christian] people. This is historically true. From the discovery ofthis continent to the present hour, there is a single voice making this affirmation.

* * *
…The fundamental orders of Connecticut, under which a provisionalgovernment was instituted in 1638-1639, commence with this declaration: '…And well knowing where a people are gathered together the word of God requires that to maintain the piece and union…there should be an orderly and decent government established according to God…to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess…of the said gospel [which] is now practiced among us.'

* * *
…[T]he Declaration of Independence recognizes the presence of the Divine in human affairs in these words: 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…appealing to the Supreme judge of the world [Jesus Christ, Son of God] for the rectitude of our intentions…And for the support of this Declaration, with firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.'

* * *
There is no dissonance in these declarations. …they affirm and reaffirm that this is a religious [Christian] nation. These are not individual sayings, declarations of private persons: they are organic utterances; they speak the voice of the entire people.
…We find that in Updegraph v. The Commonwealth, it was decided that Christianity, general Christianity [Biblical], is and always has been, a part of the common law… not Christianity with an established church [a 'ruling' denomination/sect]…but Christianity with libertyof conscience to all men.

And in the People v. Ruggles, Chancellor Kent, the great commentator on American law, speaking as the Chief Justice of the Supreme Court of New York, said:
'The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice….We are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those imposters [other religions].'
And in the famous case of Vidal v. Girard's Executors, this courtobserved: 'It is also said, and truly, that the Christian religion is a part of the common law….'

If we pass beyond these matters to a view of American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth [We are a Christian nation].
…[T]his is a Christian nation… we find everywhere a clear recognition of the same truth." Church of the Holy Trinity v. United States, (1892) 143 U.S. 457-458, 465-471; 36 L ed 226.

"We are a Christian people…according to one another the equal right of religious [Christian] freedom, and acknowledge with reverence the duty of obedience to the will of God." United States v. Macintosh, (1931) 283 U.S. 605, 625.

For it then respects the religious [Christian] nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe….

We find no constitutional requirement makes it necessary for government to be hostile to religion and to throw its weight against the efforts to widen the scope of religious influence. The government must remain neutral when it comes to competition between sects [Christian denominations]…

We cannot read into the Bill of Rights such a philosophy of hostility to religion [Christianity]." Zorach v. Clauson, (1952) 343 U.S. 306, 307, 313.

"It is true that religion [Christianity] has been closely identified with our history and government. As we said in Engle v. Vitale, 'The history of man is inseparable from the history of religion.'
Secularism is unconstitutional…preferring those who do not believe… It is the duty of government to deter no-belief religions… Facilities of government cannot offend religious [Christian] principles….

[T]he state may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe…" School District of Abington Township v. Schempp, (1963) 374 U.S. 203, 212, 225.

"It is impossible to build sound constitutional doctrine upon a mistaken understanding of Constitutional history…. The establishment clause ha[s] been expressly freighted with Jefferson's misleadingmetaphor for …years….

There is simply no historical foundation for the proposition that the framers intended to build a wall of separation [between church and state]…. The recent court decisions are in no way based on either thelanguage or intent of the framers." Wallace v. Jafree, (1985) 472 U.S. 38, 99.

As a framer and signer of the Declaration of Independence, and having personally penned it, Thomas Jefferson, on April 21, 1803, wrote in a letter to Dr. Benjamin Rush, (also a signer of the Declaration of Independence):
"My views…are the result of a life of inquiry and reflection, and very different from the anti-Christian system imputed to me by those who know nothing of my opinions. To the corruptions of Christianity I am, indeed, opposed; but not to the genuine precepts of Jesus himself. I am a Christian in the only sense in which he [Jesus] wished anyone to be; sincerely attached to his doctrines in preference to all others…"

-Thomas Jefferson, President of the United States, (April 21, 1803).
From the Record of the Congress of the United States of America Mr. Meacham giving report of the House Committee on the Judiciary; by Benjamin Franklin Morris (March 27, 1854):

"…At the time of the adoption of the Constitution and the amendments, the universal sentiment was that Christianity should be encouraged, not any one sect [denomination]. Any attempt to level and disregard all religion would have been viewed with universal indignation. The object was not to substitute Judaism or Mohammedanism [Islam], or infidelity, but to prevent rivalry among the [Christian] sects to the exclusion of the others.

It [Christianity] must be considered as the foundation on which the whole structure rests. Laws will not have permanence or power without the sanction of religious [Christian] sentiment, -without a firm belief that there is a Power above us that will reward our virtues and punish our vices.

…there can be no substitute for Christianity: that, in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions. That [Christianity] was the religion of the founders of the republic, and they expected it to remain the religion of their descendents. There is a great and very prevalent error on this subject in the opinion that those who organized this Government did not legislate on religion." Childs, George W., The Christian Life and Character of the Civil Institutions of the United States (Philadelphia: 1864), pp. 317, 320 - 327.

We live in a state named after one of the greatest Americans to have ever lived. Our nation's capital is also named for him. Washington reflects the depth of the Christian heritage that birthed our Nation. Washington is the only president to have been elected by 100% of the electorate. Under his leadership, as a servant of Christ, we won our independence. In 1752, as a young patriot, George Washington wrote in his field notebook the following prayers wherein is the Truth upon which We the People do well to carry the flame of the sacred Honor that burned in the hearts of Our forefathers:
"…Almighty God, and most merciful Father, …
…pardon I beseech Thee, my sins, remove them from thy presence, as far as the east is from the west, and accept of me for the merits of Thy son Jesus Christ, …give me peace to hear Thee calling on me in Thy word, that it may be wisdom, righteousness, reconciliation and peace to the saving of my soul in the Day of the Lord Jesus.
Bless my family, kindred, friends and country, be our God and guide this day and forever for His sake, who lay down in the grave and arose again for us, Jesus Christ our Lord. Amen.

O most glorious God, in Jesus Christ my merciful and loving Father, I acknowledge and confess my guilt, in the weak and imperfect performance of the duties of this day. I have called on Thee for pardon and forgiveness of sins…. Let me live according to those holy rules which Thou hast this day prescribed in Thy holy word; make me to know what is acceptable in Thy sight, …open the eyes of my understanding, and help me to thoroughly examine myself concerning my knowledge, faith and repentance, increase my faith, and direct me to the true object, Jesus Christ the Way, the Truth, and the Life, bless, O Lord, all the people of this land, from the highest to the lowest, particularly those whom Thou hast appointed to rule us in church and state.

…Direct my thoughts, words and work, wash away my sins in the immaculate blood of the Lamb, and purge my heart by the Holy Spirit… Daily frame me more and more into the likeness of Thy Son, Jesus Christ, that living in Thy fear, and dying in Thy favor, I may in Thy appointed time attain the resurrection of the just unto eternal life.
Most Gracious Lord God, from whom proceedeth every good and perfect gift, I offer to Thy Divine Majesty my unfeigned praise and thanksgiving for all Thy mercies towards me…I have sinned and done very wickedly, be merciful to me, O God, and pardon me for Jesus Christ sake…. Thou gavest Thy Son to die for me; and hast given me assurance of salvation, upon my repentance and sincerely endeavoring to conform my life to His holy precepts and example….

Bless O Lord the whole race of mankind, and let the world be filled with the knowledge of Thee and Thy Son, Jesus Christ…. I beseech Thee to defend me this night from all evil, and do more for me than I can think or ask, for Jesus Christ sake, in whose most holy Name and Words, I continue to pray, Our father, who art in heaven, hallowed be Thy Name….

O Lord our God, most mighty and merciful Father, I, Thine unworthy creature and servant, do once more approach Thy presence. Though not worthy to appear before Thee, because of my natural corruptions, and the many sins and transgressions which I have committed against Thy

Divine Majesty; yet I beseech Thee, for the sake of Him in whom Thou are well pleased, the Lord Jesus Christ, to admit me to render Thee deserved thanks and praises for thy manifold mercies extended toward me….

Bless the people of this land, be a Father to the fatherless, a Comforter to the comfortless, a Deliverer to the captives, and a Physician to the sick. Let thy blessing be upon our friends, kindred and families. Be our guide this day and forever through Jesus Christ in whose blessed form of prayer I conclude my weak petitions-Our Father who art in heaven, hallowed be Thy Name….

Most gracious God and heavenly Father, we cannot cease, but must cry unto Thee for mercy, because my sins cry against me for justice… That I may know that my sins are forgiven by His death and passion. Embrace me in the arms of Thy mercy; vouchsafe to receive me unto the bosom of Thy love, shadow me with Thy wings, that I may safely rest under Thy protection this night; and so into Thy hands I commend myself, both soul and body, in the Name of Thy Son, Jesus Christ, beseeching Thee, when this life shall end, I may take my everlasting rest with Thee in Thy heavenly kingdom. Bless all in authority over us, be merciful to all those afflicted with Thy cross or calamity, bless all my friends, forgive my enemies and accept my thanksgiving this evening for all the mercies and favors afforded me….

…Almighty and eternal Lord God, the great Creator of heaven and earth, and the God and Father of our Lord Jesus Christ; look down from heaven, in pity and compassion upon me Thy servant, who humbly prostrate myself before Thee, sensible of Thy mercy and my own misery…

Help all in affliction or adversity-give them patience and a sanctified use of their affliction, and in Thy good time, deliverance from them; forgive my enemies, take me unto Thy protection this day, keep me in perfect peace, which I ask in the name and for the sake of Jesus. Amen. (emphasis added.)

This same George Washington eloquently declared the profound Truth:

"It is impossible to rightly govern the world without God and the Bible."

CONCLUSION

The advent of no-fault divorce in Western society was the legal triumph of the Enlightenment contractarian view of marriage and the toppling of the traditional view of marriage as a sacred, life-long commitment and divorce as an institution . It has not been abloodless revolution . "John Stuart Mill's ideal of marriage as 'a private, bargained-for exchange between husband and wife about all their rights, goods, and interests' has become a legal reality in contemporary America... In this state of nature, contractual freedom and sexual privacy reign supreme, with no real role for the state, church, or broader civil society to play. In this state of nature, married life has become increasingly 'brutish, nasty, and short...'. James Fitzjames Stephen's warning that private contractualization of marriage will bring ruin to many women and children has also become a reality in America.... The wild oats sown in the course of the American sexual revolution have brought forth such a great forest of tangled structural, moral, and intellectual thorn that we seem almost powerless to cut it down." The Act should be supplanted by a restored respect for the sacred covenant of marriage. The contractarian view of marriage says, "it's about me", whereas the covenantal view of marriage acknowledges, "it's about God, my spouse, the children, and society", that marriage was instituted by God and given to and for Us to reflect God's grace-His forgiveness and redemption.
The advent of no-fault was indeed a legal revolution. The dark benefits of no-fault divorce in Washington are chronicled herein. Yet, there remains hope. The Court is now presented with the opportunity to ameliorate the negative social impact of no-fault divorce brought about by the Act as well as to do justice for Appellant, for the CARLSON marriage and family, and for all marriages that are "covenant" marriages established by a mutual and sincere expression of faith/religion. By simple implementation of a rational judicial standard to the "irretrievably broken" evidentiary standards in Washington's divorce law under the current Act and/or by amending or by the replacement of the Act with an accommodation allowing for the Free Expression religion, of the Christian covenant of marriage, the court can interpose a meaningful remedy to the problem of no-fault divorce and bring order out of chaos.

These are neither radical nor extreme suggestions. They are constitutionally sound. They offer appropriate, rational and necessary solutions to the serious constitutional problems with the standards and policy of Washington's Marriage and Divorce Laws under the Act in its current form. Making a settlement with the irresponsible leap to a new paradigm which no-fault divorce catapulted us in 1973 (1969 in California) is reasonable and necessary.

The Act offends basic principles of Constitutional law and the established values of our society. The Act chills the liberty and property interests of non-consentual respondents by depriving them of Due Process and violating the Contracts Clause. The passing of the Act violated the fundamental right to the Free Exercise of the covenant of a Christian marriage and is anti-Christian in that the very nature of the Act-of "no-fault" divorce-contravenes the clear commands of Christ Jesus the Lord (the Creator of the covenant of Christianity and His establishment of the covenant of Marriage) and other Biblical voices relating to marriage. (See Section V. and VI. supra.) This Court may now rightfully redress these conflicts.

Appellant prays that this Court will not neglect it's accountability to "We the People" and even more importantly it's accountability to Our Creator.

As Harvard professor of law emeritus Harold Berman wrote: "Great legal revolutions always pass through radical phases before they reach an accommodation with the tradition that they had set out to destroy".

In Re Marriage of CARLSON:

E M CARLSON,
Petitioner and Respondent,
and,
Ronald Lee CARLSON,
Respondent and Appellant.

2004 WA, No. 03-3-00971-9


ADDITIONAL LAW REVIEW / JOURNAL / TREATISE ARTICLES

…[F]our forces helped change family law and moral discourse within family law: the legal tradition of noninterference in family affairs; the ideology of liberal individualism; American society's changing moral beliefs; and the rise of the 'psychologic man,' which is a shorthand way of describing a host of changes in the way law and society view humans and human relationships. (Using Roe v. Wade as a case study.) [Pg. 1803]

…[L]aw must cope with the way people it regulates regard their moral relations. This is particularly true of family law: moral issues are central to family life and family self-governance, and hence central to the context in which family law operates. [Pg. 1806]

…[B]efore no-fault divorce, a court discussed a petition for divorce in moral terms; after no-fault divorce, such a petition did not have to be discussed in moral terms. Before no-fault divorce, the law stated a view of the moral prerequisites to divorce; after no-fault divorce, that law is best seen as stating no view on the subject. Before no-fault divorce, the law retained for itself much of the responsibility for the moral choice whether to divorce; after no-fault, most of that responsibility was transferred to the husband and wife. [Pg. 1810]

The law was once, and to a considerable extent still is, that a couple cannot contract to reduce the marital duties imposed by law. (emphasis added) [Pg. 1814, citing French v. McAnarney, 195 N.E. 714 (Mass. 1935)]

The family law we inherited (from the nineteenth century…) …enunciated and sought to enforce an ideal and lifelong marital fidelity and responsibility. Attempts to diminish the responsibilities of one spouse to the other were denied legal force by prohibitions against altering the state imposed terms of the marriage contract. Divorce was discouraged, was justified primarily by serious misconduct by a spouse, and was available only to the innocent. … Laws prohibiting fornication, cohabitation, and adultery confined sexual relations to marriage; …laws giving relief for tort interference with the marital relationship sought to achieve the same effect indirectly. Sexual relations were confined to monogamous marriage by laws prohibiting polygamy and to exogamous marriage by laws prohibiting incest. Sexual relations were confined to conventional heterosexuality by sodomy laws. …Modern family law …rejects some of the old standards as meaningless, undesirable, or wrong; [standards] that go beyond the minimal responsibility expressed in the cant phrase, 'Do your own thing, as long as you don't hurt [footnote describes: 'by palpable harm'…] anybody else.'

…[T]hat standard can instill neither inspiration nor the empathy to encourage people to anticipate ways in which their conduct might be harmful, much less shape their conduct so that it is actively helpful. (emphasis added) [Pg. 1820]

[T]he trend toward diminished moral discourse in family law is most actively promoted by lawyers, judges, and legal scholars who are, relative to the state legislators and judges who would otherwise decide family law questions, affluent, educated, and elite. This group's views on family law questions are (relatively) liberal, secular, modern, and non-interventionalist. [Public opinion surveys] suggest that 'community leaders' and members of the 'legal elite' consistently have more liberal attitudes on the family law questions than the mass public. [J]udicial receptivity to unmarried cohabitation stems in part from the fact that judge's sons and daughters are members of one of the two groups in which non-marital cohabitation is most common. [Pg. 1821]

[T]here is no body of law that everyone agrees is 'family law.' …[A]lthough many states compile statutes under the rubric of 'domestic relations,' those phrases have no uniform content. … Even law that is undeniably 'family' law rarely treats the family as a whole. Rather family law is divided in two-the law of husband and wife, and the law of parent and child-and each part is doctrinally fragmented. [Pg. 1824]

Schneider, Carl E., "Moral Discourse and the Transformation of American Family Law", 83 Mich. L. Rev. 1803, (August, 1985)

…[I]n 1969, California adopted the first no-fault divorce law in the United States. -Family Law Act, ch. 1608, §§ 1-32, 1969 Cal. Stat. 3312.

Herma Hill Kay (Prof. Of Law, Univ. of CA at Berkeley. A member of the California Governor's Commission on the Family; Co-Reporter of the Uniform Marriage and Divorce Act [the "Act"]; and Co-Investigator on the California Divorce Law Research Project.), "Equality And Difference: A Perspective on No-Fault Divorce and its Aftermath", 56 U. Cin. L. Rev. 1, 81 (1987)

Cahn, Naomi R., "Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions", 44 Vand. L. Rev. 1041, 55 (October, 1991)

Woodhouse, Barbara Bennett (With Comments by Katherine T. Bartlett), "Sex, Lies, And Dissipation: The Discourse of Fault in a No-Fault Era" (Symposium: Divorce And Feminist Legal Theory), 82 Geo. L.J. 2525, 38 (September, 1994)

Samuel, Cynthia, "Letter From Louisiana: An Obituary for Forced Heirship and Birth Announcement for Covenant Marriage", 12 Tul. Civ. LF 183, 9 (Winter, 1997)

Bradford, Laura, "The Counterrevolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws", 49 Stan. L. Rev. 607, 32, (February, 1997)

LaBauve, Melissa S., "Covenant Marriages: A Guise For Lasting Commitment?", 43 Loy. L. Rev. 421, 18 (Fall, 1997)

Lawton, Melissa, "The Constitutionality of Covenant Marriage Laws", 66 Fordham L. Rev. 2471, 49 (May, 1998)

Carriere, Jeanne Louise, "It's De'ja' Vu All Over Again: The Covenant Marriage Act In Popular Culture Perception And Legal Reality", 72 Tul. L. Rev. 1701, 44 (May, 1998)

Shaw Spaht, Katherine, "Louisiana's Covenant Marriage: Social Analysis And Legal Implications", 59 La. L. Rev. 63, 71 (Fall, 1998)

Rigby, Kenneth, "Report And Recommendation Of The Louisiana State Law Institute To The House Civil Law And Procedure Committee Of The Louisiana Legislature Relative To The Reinstatement Of Fault As A Prerequisite To A Divorce", 62 La. L. Rev. 561, 30 (Winter, 2002)

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