With Justice for ALL (quote from the pledge of allegience U.S.A.)
This is an informational website offering support not legal advise
- Washington Case Carlson -
Washington State Appeal and Defenses
|Full documents can be found as public record in the appropriate courts. Not all documents are available on this site.|
This is an informational website offering support not legal advise
WA C.O.P. DIV. 1 NO.: 54632-5-I
OF THE STATE OF WASHINGTON
In re the Marriage of E and RONALD CARLSON:
E M CARLSON,
Ronald Lee CARLSON,
Appeal from the Superior Court for the County of Snohomish,
APPELLANT'S OPENING BRIEF
Ronald L. Carlson,
Journal of Marriage and the Family, at 477-488, May 1995 37
SCRIPTURE, SPIRITUAL/RELIGIOUS WRITINGS
Coltrane, Scott "Father-Child Relationships and
Data From the 1988 National Health Interview Survey on Child Health,"
(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?
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.
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.
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 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.
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:
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.
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.
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:
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
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:
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.
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:
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
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.
"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.
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:
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.
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.
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.
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).
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.
"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:
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.
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.
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:
This principle is restated in more contemporary terms by the Logan case.
Justice Blackmun states:
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
"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:
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.
The key language of Justice Marshall in Dartmouth, goes to the core of
Appellants assertion that marriage is a contract under the Contracts clause:
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 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
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 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."
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
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:
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
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
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.
has become increasingly 'brutish, nasty, and
'. 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:
Dr. Dobson further declares the major point of change in American divorce
Finally Dr. Dobson summarizes the sociological impact of the breakup
of traditional marriage and the natural family:
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.
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:
"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.
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
[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:
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
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).
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."
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.
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.
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
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:
"[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
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:
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:
* * *
* * *
* * *
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:
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].
"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.'
[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
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):
-Thomas Jefferson, President of the United States, (April 21, 1803).
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:
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
. 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
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.
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."
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.
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,
2004 WA, No. 03-3-00971-9
[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.'
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)