Marriage Defenders

With Justice for ALL (quote from the pledge of allegience U.S.A.)

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Washington State Appeal G - 1999

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Washington State Case

Table of Contents

Title Page i

Table of Contents 1

Table of Cases 2

Table of Other Authorities 4

Assignments of Error 4

Statement of the Case 7

Arguments and Authorities 15

Assignment of Error #1 15

Assignment of Error #2 24

Assignment of Error #3 27

Assignment of Error #4 36

Assignment of Error #5 41

Assignment of Error #6 42

Arguments 46

Conclusion 53

Table of Cases

Adkins v. Children's Hospital, 261 U.S. 525, 561, 43 S. Ct. 394, 402, 67 L.Ed. 785 (1923) ………………………………………………………………… page 36

Aetna Life Ins. V. Bunt, 110 Wash. Td 368, 754P.2d933,996 (1998) ……………………………………………………………….…………… page 30

Beeby v. Beeby, 1 Hagg. Const. 789, 3 Eng Eccl 338 ……………. page 50

Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L.Ed. 2d 113 (1971) …………………………………………………………………………… page 52

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 206 U.S. 520, 527, 113 S. Ct. 2217, 124Led. 2d 472 (1993) …………………………….….page 31

Carrieri v. Bush, 69 Wash. 2d 536, 419 P. 2d 132, 137 (1966) ……………………………………………………………………………… page 56

City of Seattle v. Ross, 54 Wash. 655, 344 P.2d 217 (1959) ………………………………………………………………………….……page 34

Donaldson v. Donaldson, 38 Wash. 748, 231 P.2d 607, 612 (1951)………………………………………………………………….…….page 38

Fix v. Fix, 33 Wash. 2d 229, 204 P. 2d 1066 …………………….…….page 38

In re Marriage of Short, 125 Wash. 2d 865, 890 P.2d 12 (1995) …………………………………………………………………………..……page38

Klagsbrun v. Va'ad Harabonim of Greater Monsey, 53F. Supp.2d732 (D.N.J. 1999) ……………………………………………………………………......page25

Little v. Little, 96 Wash.2d 183, 634 P.2d 498 (1981) ……… page 38, 39, 42

Manley v. State of Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L.Ed. 575 (1928) …………………………………………………………………………..……page36

Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 2d 654 (1888) ………………………………………………………………….… page 43, 44, 47

Mertens v. Mertens, 38 Wash. 2d 55, 227 P.2d 724 (1951) ………… page 56

Morrison v. Morrison, 8 N.E. 59 (Sup. J. Council, Mass. 1886) ………………………………………………………………………….……page 51

Neff v. Neff, 30 Wash. 2d 593, 192 P. 2d 344 ………………………… page 38

Orians v. James, 84 Wash. 2d 819, 529 P. 2d 1063 (1974) …………………………………………………………………………….…page 43

Patton v. City of Bellingham, 179 Wash. 566, 38 P.2d 364 ………………………………………………………………………….…... page 35

Proctor v. Proctor, 2 Hagg. Const. 292 …………………………………page 50

Robbins v. Robbins, 5 N.E. 837 (Mass. 1886) …………………….….. page 51

Rustad v. Rustad, 61 Wash. 176, 377 P.2d 414 (1963) …………...… page 39

Serbian Eastern Orthodox Diocese, Etc., v. Milivojevich, 426 U.S. 712, 96 S. Ct. 2372, 2380, 49 L.Ed. 151 (1976) ………………………………………………………….….page 20, 22, 24, 25, 28

Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L.Ed. 2d 551 (1972) ………………………………………………………………….....…………. page 33

Stoneburner v. Stoneburner, 83 P. 938 (Idaho Sup. Ct. 1906) …………………………………………………………..…………..……….. page 50

Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943) ………………………………………………………………………..….……page 36

Ware v. Phillips, 77 Wash. 2d 879, 468 P.2d 444 (1970) ………..….…page 34

Watson v. Jones, 13 Wall. 670, 20 L.Ed. 666 (1872) ..……...…….. page 22, 25

Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S. Ct. 1526, 32 L.Ed.2d 15 (1972) ……………………………………………………………….………….....… page 30 Table of Other Authorities Constitutions

UNITED STATES CONSTITUTION, First Amendment …………...……… page 19, 20 UNITED STATES CONSTITUTION Fourteenth Amendment ……. page 20, 34 WASH. CONST. Art. 1, § 11 (1889, 1958 amendment)……….…………. page 56 WASH. CONST. Art. 1 § 2 (1889)……………………………………...…… page 43 Statutes R.C.W. 10 ……………………………………………….………….. page 12

R.C.W.A. 26.04.0101 (1988) …………………………………..…….…… page 12 R.C.W.A. 26.09.030 (West 1999). …………….….. page 31, 37, 38, 42, 45, 58

Legal Encyclopedia 19 CORPUS JURIS Divorce §§219-221 (1920) ……. page 49, 51

The Bible Proverbs 22:24 Amplified Version …………………..………….…page 10

1 Corinthians 6:9 -10 Amplified Version ……………………………..........…. page 15 1 Corinthians 7:10 -11 Amplified Version ……………….……… page 11, 15, 18 Deuteronomy 22:13-19 Kingdom Dynamics Bible ……...… page 12, 13, 50, 51 Deuteronomy 24:1-4 Kingdom Dynamics Bible ……………………..…. page 15 Genesis 2:24 Complete Jewish Bible ……………………..………... page 14, 21 Genesis 2:20-24 Kingdom Dynamics Bible ………………….…...…….. page 21 Hebrews 13:4 Amplified Bible ………………………………..…..……… page 11 Hosea 3:1 Amplified Bible ……………………………….…..….…... page 12, 14 Malachi 2:13-16 New International Version……………..…………….… page 13 Malachi 2:13-16 Complete Jewish Bible ………………..………….. page 13, 16 Malachi 2:16 Amplified Bible ……………………………..…. page 11, 15, 18, 54 Malachi 2:13,14,16 Kingdom Dynamics Bible ……………..…….... page 11, 15 Malachi 3:5 Complete Jewish Bible ………………………..……….……. page 15 Mark 10:2 - 12 Amplified Bible …………………….…….….……………..page 11 Mark 10:11 Complete Jewish Bible ………………..………….…….. page 11, 15 Matthew 5:32 Complete Jewish Bible ………………………...…….. page 11, 15 Matthew 18:35 Kingdom Dynamics Bible …………………….…….…… page 14 Matthew 19:1-9 Kingdom Dynamics Bible …………………….……. page 11, 15 Matthew 19:4-6 Amplified Bible ………………….…..… page 11, 15, 21, 54, 55 Matthew 19:7-9 Complete Jewish Bible ……….…………..…..…………page 14 Matthew 19:7-9 Amplified Version …………………………....………… page 14 1 Peter 3:7 Complete Jewish Bible …………………………..…..….…… page 13 1 Peter 3:7 Amplified Version ………………………………..……..…...…. page 14 Luke 1:37 New International Version and Amplified …………...…. page 14, 15 Proverbs 18:22 ………………………………………………..……...……. page 15 1 Timothy 5:8 Amplified Bible ……………………………….……………page 15

Assignments of Error

1. Court has no subject matter jurisdiction over the marriage between the Petitioner and the Respondent because the couple has a Christian marriage. The First Amendment to the United States Constitution forbids inquiry into the Respondent's religious beliefs about marriage; therefore, the court has no jurisdiction. Standard of review is strict scrutiny under the establishment of religion clause of the First Amendment.

2. Washington States no-fault divorce statute unconstitutionally infringes upon the Respondent's right to free exercise of religion. It is her firm belief that marriage is a "blood covenant" lifetime religious contract, which cannot be terminated short of death of one of the parties to the marriage. Washington State's expressed public policy is to encourage divorce on demand. This prevents S 's free exercise of religion. Standard of review is strict scrutiny under the free exercise clause of the First Amendment.

3. Washington's no-fault divorce statute creates an irrebutable presumption, which violates due process of law and equal protection of the law. The statute is therefore unconstitutional. Standard of review is strict scrutiny regarding equal protection of law because the statute infringes upon the right to marry, a fundamental right.

4. Washington's judicial determination that marriage depends upon the consent of the parties violates the constitutional definition of marriage, and is thus unconstitutional. Standard of review is strict scrutiny under the Fourteenth Amendment to the United States Constitution.

5. Statutes allowing for divorce do not provide meaningful defenses to persons resisting a divorce. Defenses at common law included recrimination, adultery, condonation, and factually insufficient testimony. These statutes violate due process rights afforded all litigants and are therefore unconstitutional. Standard of review is strict scrutiny regarding equal protection of law because the statute infringes upon the right to marry, a fundamental right.

6. Trial judge's ruling that no testimony regarding the marriage would be heard violated S's right to due process of law, and reversal for rehearing is required. Standard of review is abuse of discretion.

 

Statement of the Case

This is a divorce case. The parties are M C. , ("M") and his wife S L. , ("S"). M petitioned the Superior Court of Washington, County of , to terminate his marriage with S on October 17, 1997.

To do so, M obtained and completed three simple fill-in-the-blank forms, A Petition for Dissolution of Marriage, A Motion/Declaration for ex parte Restraining Order and for Order to Show Cause, and a Summons. CP 1-16. The Court granted his request for restraining order. CP 17-19. M also completed a Motion of Declaration for Temporary Order form. CP 20-21. The Court set a hearing date, and M completed a Notice of Hearing of Motion, Family Law Calendar form, and a hearing was set for October 31, 1997 on his motion. CP 25. The Superior Court of Washington, County of Spokane, printed a Domestic Case Schedule Order up and the trial date was set for October 19, 1998. CP 26.

Thus, without a lawyer and without any training in the law whatsoever, M initiated a sequence of events, which would irretrievably end in divorce for this couple on October 19, 1998, unless something else happened.

M perfected service and the Return of Service form was filed on October 20, 1997.

S filed her Response to Petition on October 28, 1997 with the specific notation, "1.1 Denied The marriage is not irretrievably broken."

CP 30. In the area entitled, Request for Relief, S typed in, "Dismiss Petition for Dissolution."

CP 31. S made a much fuller response to the divorce petition in a customized response entitled, "Response to Petitioner (Domestic Relations) (RSP)."

CP 45-61. She made the specific declaration that the divorce petition be denied, and she gave complete and valid reasons why there should be no divorce.

CP 45. She stated that she did not believe the marriage is irretrievably broken. Id. She stated that deaths in the family, her illness and emotional upheaval in petitioner had caused unresolved anger to surface, which resulted in his destructive behavior.

Id. She referred to a restraining order she had obtained against him, and she stated that the purpose for the restraining order was safety, not dissolution. Proverbs 22:24 amplified Bible Id. She asked the Court to stop the divorce process. Id. She stated that her desire was that the couple would get counseling and "have a restored relationship."

CP 46. She wrote that she believed any further movement towards dissolution and dividing up property would be counterproductive to the goal of a healthy restored relationship. Id. She stated, "I take the vows and covenants of marriage very seriously and do not intend for this relationship to dissolve without doing whatever I can to bring about a healthy option. Respondent WILL NOT agree to dissolution. My intent is to preserve and protect - not destroy." Malachi 2:16, amplified Malachi 2:13, 14, 16 Kingdom Dynamics Bible page 1385, Mark 10:2-12 Amplified Version Id. She detailed in the next eleven paragraphs how the restoration could occur through counseling. Id. Matthew 19:1-9 Kingdom Dynamics Bible page 1441 and commentary. S made a further specific response to the petition for dissolution by stated, "AS A RESPONDENT, I DO NOT join in this petition. I DO NOT agree to have the decree entered without further notice."

CP 57, emphasis in original. Mark 10:11 complete Jewish Bible, Matthew 5:32 complete Jewish Bible, Mark 10:2-12 Amplified Bible Temporary Orders were entered on October 31, 1997.

CP 70-74. On April 23, 1998, S filed a Motion and Declaration to Amend Temporary Order in which she reaffirmed her desire to reconcile after counseling, citing her religious beliefs, which forbid her to agree to dissolution or permanent separation.

CP 75-77. Matthew 19:4-6 Amplified Bible, 1Corinthhians 7:10-11 amplified, Hebrews 13:4 Amplified Bible, Matthew 5:32 amplified, She stated, "Respondent and Petitioner are in covenant relationship that forbids divorce without specific defined grounds that do not exist."

CP 76. Deuteronomy 22:13-19 Kingdom Dynamics Bible page 283-284 On January 11, 1999, S filed an "Objection to Note for Pretrial Setting: Dissolution:" in which she detailed her specific reasons why the court should not grant a divorce to the Petitioner.

CP 94-100. A hearing was held on the Objection on January 15, 1999, and S testified that she had the fundamental right guaranteed by the common law supported by the Constitution of the United States and the State of Washington to "have my marriage legally supported and preserved, not pushed along the path to arbitrary dismissal for no cause."

RP 2. She contested the entire dissolution process "as it violates my religious, moral, common law and civil rights."

RP 4. She stated that she had an "equal right in law to require the Court to keep this marriage intact." Id.. Hosea 3:1 amplified Bible She quoted RCW 10, which stated, "It is a compelling interest of the State of Washington to reaffirm its historical commitment to the institution of marriage as a union between a man and a woman, as husband and wife, and to protect that institution." RP 4-5, citing legislative intent to amendment to R.C.W.A. 26.04.101 (1988). She asserted her rights to all the rights given her under the common law, including the right to defend her marriage against dissolution, and her right to assert the defense of recrimination.

RP 5. She specifically stated, "I am being denied the right to recrimination as guaranteed under common law, state and federal law statutes and regulations. Among other things, common law states that the courts must find in favor of the lesser guilty party." Id. Deuteronomy 22:13-19 Kingdom Dynamics Bible She testified that due process requires establishing fault "and is my right under the common law, United States Constitution, Washington State law and the laws of the Supreme Ruler of the universe. I use the term Supreme Ruler of the universe because Washington State Constitution establishes that is the State's terminology for God. Id. She testified that the process of dissolution was denying her religious beliefs.

RP 6. Malachi 2:13-16 New International Version and Complete Jewish Bible. Citing the Washington Constitution, she asserted her right to "absolute freedom of conscience in all matters of religious sentiment, belief and worship [to be] guaranteed to every individual and no one shall be molested or disturbed in person or property on account of religion." Id. She testified that her request to dismiss was based upon deeply held historically proven religious beliefs, and her absolute rights to due process, recrimination, civil and common law rights, which were being ignored. Id. Matthew 19:7-8 Complete Jewish Bible, Matthew 19:9 Complete Jewish Bible. S asserted her right to defend the "one flesh, blood covenant which is supported by law in Washington State as inviolate."

RP 7. She stated, "It is lifetime in duration and has no provision for divorce for any reason. Genesis 2:24 Complete Jewish Bible, Hosea 3:1 Amplified Bible, Luke 1:37 Amplified Bible, Matthew 18:35 Kingdom Dynamics Bible page 1440. Genesis 2:24 Complete Jewish Bible "The man-person said, At last! This is bone of my bones and flesh from my flesh. She is to be called Woman (Hebrew: ishah), because she was taken out of Man (Hebrew: ish)." Ishah was the pet name Mr. gave his wife S and is indicative of their one flesh covenant. This Covenant marriage does not depend on the behavior of either party. 1 Peter 3:7 Amplified Bible She further stated that no court can dissolve this marriage, nor should they try to, as it is beyond the jurisdiction of civil authority." Id. She further asserted that her religious beliefs were such that if dissolution were granted, "any other relationship sanctioned by this or any other state would be tantamount to adultery and bigamy with horrendous consequences. No other one flesh, lifetime blood covenant can ever be established." Id. Deuteronomy 24:1-4 Kingdom Dynamics Bible pages 285-286, Malachi 3:5 Complete Jewish Bible, 1 Corinthians 6:9-10. 1 Corinthians 6:9 - 10 Amplified Bible, 1 Timothy 5:8 Amplified Bible. Matthew 19:1-9 Kingdom Dynamics Bible page 1441 commentary, Mark 10:11 complete Jewish Bible, Matthew 5:32 Complete Jewish Bible S continued by stating her belief that through application of biblical principles, and counseling, the marriage could be restored.

RP 8. 1 Corinthians 7:10-11 Amplified Bible, Proverbs 18:22 Amplified Bible, Luke 1:37 New International Bible She asserted the biblical principle that God hates divorce as recorded in Malachi 2:16, but she asserted that God is capable of miracles, such as restoring her marriage. Id. Luke 1:37 Amplified Bible, ""For with God nothing is ever impossible and no word from God shall be without power or impossible of fulfillment." She asserted that this biblical principal required Washington to "exclude itself" from interfering with matters of religious belief.

RP 9. Matthew 19:4-6 Amplified Bible She testified, "I believe that state interference with this covenant marriage is tantamount to state interference in established religion and the rights to protect the institutions it represents. Marriage is a basic building block of civilized society and covenant is the eternal center of marriage." RP 9. Malachi 2:13-16 complete Jewish Bible. Malachi 2:13, 14, 16 Kingdom Dynamics Bible page 1385. She asked that the entire proceeding be dismissed on the grounds that the proceeding interfered with her religious beliefs. Id. The Court denied the motion.

CP 101. Trial was set for May 28, 1999. On April 12, 1999, S sought a continuance for the reason that she had a disability, which prevented her from adequately defending herself in court.

CP 105-108. A pre-trial hearing on the motion was held on May 19, 1999.

CP 109-111. At that hearing, the Court addressed the issue of whether the divorce would be granted by stating, "It really boils down to one item, because as I have indicated to you, if Mr. comes in and testifies that in his view the marriage is irretrievably broken and he wants to dissolve the marriage, the Court has no alternative but to dissolve the marriage under the law."

RP 3. S asked for permission to put on experts regarding marriage.

RP 4-5. The hearing was adjourned and the court issued an order.

CP 109-111. In that order the Court stated: "The issue of whether or not the court can proceed to dissolve the marriage will not be contested by courtroom testimony and no expert testimony will be allowed. That issue is decided as an issue of law, if it is established that the marriage is irretrievably broken." Id. S filed a Motion for Clarification on May 20, 1999, seeking clarification of the Court's ruling cited above.

CP 113-114. The Court replied to the Motion for Clarification by stating that the Court had unequivocal authority to dissolve marriage. RP 7. He would allow not testimony, no evidence, nothing with regard to that will be allowed "because it is a nonissue legally." Id. As to the amount of evidence needed to prove that the marriage is irretrievably broken, the Court stated as follows: "The evidence with regard to an irretrievably broken marriage, it cannot be rebutted; it is a nonrebuttable situation."

RP 8. The court responded to the Motion for Clarification, which asked how a person would know why she was divorce. The Court responded, "It is because the marriage is irretrievably broken; the evidence is to that effect; that is the basis, and that is why." Id. The Court stated, "There is no ability to defend that marriage itself in a court of law under the laws of this state. So, that issue is, again, resolved. It is not an issue of equal protection of the law because both parties are treated equally." Id., at 8-9. The court adjourned the hearing on the clarification motion and proceeded to a dissolution hearing, at which time the divorce was granted.

RP 12-13. At the hearing the Petitioner was asked, "Is this marriage between the two of you irretrievably broken."

RP 12. M answered, "Yes, sir, it is." Id. His attorney asked, "Would you explain to me why you say that?" S objected, stating, "There is to be no testimony on the marriage. That law states, as you explained, that all he has to do is state that the marriage is irretrievably broken." Id. The Court overruled her objection and allowed him to explain that he did not trust S, that there were no romantic feelings toward her, and that he had lost respect for her. He said there was no way that the marriage could ever be put back together.

RP 13. The divorce was granted.

CP 126. S wrote on the decree, "I do not agree that this marriage is irretrievably broken, Malachi 2:16 and 1 Corinthians 7:11."

CP 130. ARGUMENT AND AUTHORITIES Assignment of Error Number 1 1. This court has no subject matter jurisdiction over the marriage between the Petitioner and the Respondent because the couple has a Christian marriage. The First Amendment to the United States Constitution forbids inquiry into the Respondent's religious beliefs about marriage; therefore, the court has no jurisdiction to determine whether the marriage should be terminated. Standard of review is strict scrutiny under the establishment of religion clause of the First Amendment. S was never given the opportunity to present testimony regarding her religious beliefs. However, in her Declaration and Objection to Pretrial Settlement Conference Setting, she set forth in detail her reasons why the trial court did not have jurisdiction over her marriage.

CP 97-99. She believed that she and her husband were joined together in a lifetime, one flesh, blood covenant marriage relationship in a religious ceremony. She believed that State interference with this covenant marriage is tantamount to State interference in established religion. She believed that if the State assumed jurisdiction over the marriage the State of Washington would be usurping the position of the Supreme Ruler of the Universe. These statements clearly show that S believed that marriage was a religious act. M asked for a divorce and created a situation in which the state government stepped in to release him from a religious commitment. This government action is prohibited by the establishment clause of the First Amendment.

The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" U.S. Const., First Amend. There are two clauses regarding religion, the establishment clause and the free exercise clause. The establishment clause bars the government from reviewing religious disputes of churches. "When resolution of disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical policy, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them." Serbian Eastern Orthodox diocese, Etc., v. Milivojevich, 426 U.S. 712, 96 S. Ct. 2372, 2380, 49 L.Ed. 151 (1976).

Resolution of the religious dispute in this case is whether a divorce may be granted if the religious meaning of marriage within the church is defined as a lifetime union based upon the Bible and the doctrines of Jesus Christ. However, because state government has completely pre-empted the field in this case, S cannot point to a decision-making body within her church to decide this case.

Therefore, the question in this case is whether state government is permitted to define marriage as a purely civil matter regarding "status" when one party to the marriage declares that the relationship is a religious one.

The ancient biblical account of the first man and woman calls the pair "one flesh". Genesis 2:24. God created Adam, the first man, and after Adam had given names to every living creature, God saw that "there was not found a helper comparable for him." Genesis 2:20. God then created woman from man, and God brought the woman to him. Adam said of the event, "this is now bone of my bones and flesh of my flesh; She shall be called Woman, because she was taken out of Man." Genesis 2:23. "Therefore a man shall leave his father and mother and be joined to his wife, and they shall become one flesh." Genesis 2:24.

Jesus specifically said that if a man and woman are joined in marriage, they are one flesh. Matthew 19:6. "Therefore, what God has joined together, let no man separate." Id. Genesis 2:24 Complete Jewish Bible "The man-person said, "At last! This is bone from my bones and flesh from my flesh. She is to be called Woman (Hebrew:ishah), because she was taken out of Man (Hebrew:ish)." Ishah was the pet name Mr. gave his wife S. For a religious person of the Christian faith, Jesus told of severe consequences for divorce. He said, "And I say to you, whoever divorces his wife, except for sexual immorality, and marries another, commits adultery' and whoever marries her who is divorced commits adultery."

Ld., at 9. There can be no doubt that marriage and divorce are the objects of deepest concern to religious persons. In Washington State, the trial judge is required to determine whether a marriage is "irretrievably broken." In S 's case, that inquiry is deeply religious, yet the trial judge refused to even consider the meaning of marriage, much less whether biblical grounds for divorce existed. Current civil law defines marriage as a status, and nothing more. This definition negates everything Jesus Christ taught about marriage, and the definition of marriage impermissibly entangles state government in the resolution of a deeply religious issue. "

The principles limiting the role of civil courts in the resolution of religious controversies that incidentally affect civil rights were initially fashioned in Watson v. Jones, 13 Wall. 670, 20 L.Ed. 666 (1872)." Serbian Eastern Orthodox Diocese, Etc., v Milivojevich, 426 U.S. 712, 96 S.Ct. 2372, 2381, 49 L. Ed. 151 (1976). Watson held that, with respect to hierarchical churches: The role of action which should govern the civil courts is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. Ld., at 727, 20 L.Ed. 666.

The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. Bit it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Ld., at 728-729, 20 L.Ed. 666 (emphasis supplied in Milivojevich).

The constitution mandates that civil courts are bound to accepts the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. Serbian Eastern Orthodox Diocese, Etc., v. Milivojevich, 96 S.Ct. at 2382. The issue in S 's case is one of religious doctrine and morals: Does M have grounds for divorce? Under the law of Jesus, that is a question for the church to decide.

The subject matter of the dispute is one which is clearly outside the court's competence to decide. But it is a very different thing where the subject-matter of dispute, strictly and purely ecclesiastical in its character, - a matter over which the civil courts exercise no jurisdiction, - a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them, - becomes the subject of its action….

But it is easy to see that if the civil courts are to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court. This principle would deprive these bodies of the right of construing their own church laws, would open the way to all the evils which we have depicted as attendant upon the doctrine of Lord Eldon, and would, in effect, transfer to the civil courts where property rights were concerned the decision of all ecclesiastical questions.

Watson, 13 Wall., at 733-734, 20L.Ed. 666. "It is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith, whether or not rational or measurable by objective criteria." Serbian Eastern Orthodox diocese, Etc., v. Milivojevich, 96 S. Ct. 2372, 2383. A federal appeals court in New Jersey recently dismissed a lawsuit against a religious decision making body for lack of subject matter jurisdiction. Klagsbrun v. Va'ad Harabonim of Greater Monsey, 53 F. Supp.2d732(D.N.J.1999). The case involved a civil divorce, a religious decision making body's reaction to that divorce, and a defamation and libel lawsuit brought against the decision making body.

The plaintiff in the lawsuit was Seymour Klagsbrun. He and his former wife, Shulamith Klagsbrun, were married in an Orthodox Jewish ceremony in June 1957. ld., at 735. After living apart for 10 years, Shulamith Klagsbrun obtained a civil divorce in 1995. She also sought a religious divorce, a get, from a rabbinical court in conformance with her religious beliefs. She contends that the rabbinical court ordered Mr. Klagsbrun to grant her a get and he refused. ld. His refusal to grant the get has resulted in preventing Shulamith Klagsbrun from remarrying in conformity with the tenets of her faith. ld. The children of Seymore and Shulamith Klagsbrun informed a rabbi in the synagogue where they worshiped that Seymore had remarried. ld. They also informed the rabbi that Seymour had not given their mother a get. When this information was received, it was referred to the Va'ad, a body comprised of Orthodox rabbis who facilitate common practices among member congregations. The proceedings of the Va'ad are governed exclusively by the Shulchan Arukh, the code of Jewish law. ld., at 734-735.

The Va'ad then convened, and acting as a religious court, informed Mr. Klagsbrun that he had to either give his wife a get or present evidence that he had obtained a valid rabbinic dispensation permitting him to remarry. He refused to do so, and the Va'ad sent a notice regarding the events they considered. Ld. In that notice the Va'ad alleged that he had never given his wife a Jewish divorce, that he has since remarried, and that he has not shown authority to remarry. He was ordered to give his wife a Jewish divorce, and he did not do so.

The notice concluded that Seymour Klagsbrun was not entitled to any honors or participation in synagogue services, and "that all possible sanctions should be place[d] against him until he complies with the Bais Din and grants a Jewish divorce to his wife, Shulamith Klagsbrun." Ld., at 735-736. The plaintiffs alleged that these statements were false and defamatory, and that their community has shunned them. Ld., at 736.

The trial judge granted a motion to dismiss based upon the premise that the establishment clause of the First Amendment prohibits civil court inquiry into facts that are religious in nature. Ld. The court noted that the establishment clause requires that a law or regulation not foster excessive governmental entanglement with religion. Ld., at 737. Excessive entanglement may occur when judicial review of a claim required "a searching inquiry into church doctrine." Ld., citing Milivojevich, 96 S.Ct., at 2387.

The establishment clause prohibits courts from determining underlying questions of religious doctrine and practice. Ld. The court found that the defamation lawsuit would require the court to inquire into religious doctrine and practice, and that inquiry was prohibited by the establishment clause of the First Amendment. Ld., at 742. S presents a compelling case that in order to grant a divorce, the court must inquire into whether the marriage is truly "irretrievably broken."

Under S's interpretation of Christinan doctrine and her individual religious beliefs, a marriage is never truly "irretrievably broken" if the marriage is between two believing Christians. Based upon Christ's example of forgiveness and love, every couple has the possibility of successful reconciliation; there fore, under her religious beliefs, there is never any marriage which is truly "irretrievably broken."

For the court to actually ascertain whether such an action has taken place, the court must necessarily inquire into areas of church doctrine and religious belief. Its rulings must inquire into the whole subject of doctrinal theology regarding marriage. The civil courts would thereby deprive the Mother Church of its right to determine the rights of those who voluntarily subject themselves to its authority.

The First Amendment prohibits such a deprivation. This suit must be dismissed because the court has no jurisdiction over the religious issues that the definition of marriage presents.

Assignment of Error Number 2 2.

Washington State's no-fault divorce statute unconstitutionally infringes upon the Respondent's right to free exercise of religion. It is her firm belief that marriage is a "blood covenant" lifetime religious contract which cannot be terminated short of death of one of the parties of the marriage. Washington State's expressed public policy is to encourage divorce on demand. This prevents S 's free exercise of religion. Standard of review is strict scrutiny under the free exercise clause of the First Amendment.

S believes marriage is a blood covenant, a lifetime contractual relationship which is central to her religious beliefs. She believes the loss of a blood covenant marriage has eternal significance for her and her husbands' eternal souls. The lifetime marriage contract is an essential part of her worship of God because the Bible teaches that Jesus Christ is the groom and the church is the bride in a marriage between Christ and the Church, which will come in the end times. S cannot imagine Jesus Christ divorcing His church; therefore, the concept of lifetime marriage is an important part of the free exercise of her religious beliefs.

However, Washington State's expressed public policy is to declare marriages "defunct" long before death of one of the parties to the marriage. Aetna Life Ins. V. Bunt, 110 Wash. 2d 368, 754 P.2d 933, 966 (1988). This view is in direct conflict with S's religious belief that marriage does not end until one of the parties to the marriage dies.

In Wisconsin v. Yoder, a state compulsory education statute was declared invalid on the basis that Old Order Amish had the deeply felt religious belief that life "aloof from the word and its values was central to its faith," and that the compulsory education law interfered with that faith. Wisconsin v. Yoder, 406 U.S. 205, 216,92 S. Ct. 1526, 32 L.Ed. 2d15 (1972). The Amish were required to choose between abandoning their faith and being assimilated into society at large, or being forced to migrate to some other and more tolerant region. Ld.This kind of choice is forbidden by the First Amendment.

The citizens of the City of Hialeah, Florida believed that the animal sacrifice of the Lukumi Bablu Aye, Inc., Church was intolerable, and created zoning ordinances which effectively outlawed the practice. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 206 U.S. 520, 527, 113 S. Ct. 2217, 124 L.Ed 2d 472 (1993). The laws were motivated by religious belief, and the Supreme Court ruled that because the laws prohibited the free exercise of their religion, the laws were unconstitutional. Ld., at 546.

"The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals from state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular." Ld., at 546. For S, the law, which terminates marriage before its natural end, that is the death of one of the parties to the marriage, is a burden of law, which is religious in nature.

The mechanism of "divorce on demand" is a law which oppresses the Christian religion based upon the commands of Jesus Christ.

The law of divorce on demand (R.C.W. 26.09.030) (West 1999) is against the command of religious tolerance, and must be declared unconstitutional on that basis.

Assignment of Error Number 3 3.

Washington's no-fault divorce statute creates an irrebutable presumption which violates due process of law and equal protection of the law. The statute is therefore unconstitutional. Standard of review is strict scrutiny regarding equal protection of law because the statute infringes upon the right to marry, a fundamental right. In this case S asked the trial judge to clarify the amount of evidence needed to "prove up" a divorce. The Court replied to her by stating that the Court had unequivocal authority to dissolve marriage.

RP 7. The Judge would allow no testimony, no evidence, nothing with regard to that will be allowed "because it is a nonissue legally." Ld. As to the amount of evidence needed to prove that the marriage is irretrievably broken, the Court stated as follows: "The evidence with regard to an irretrievably broken marriage, it cannot be rebutted; it is a nonrebuttable situation."

RP8. The trial judge further responded to S's Motion for Clarification, which asked how a person would know why she was divorced. He said "it is because the marriage is irretrievably broken; the evidence is to that effect; that is the basis, and that is why." Id. The trial judge concluded by stating, "There is no ability to defend that marriage itself in a court of law under the laws of this state. So, that issue is, again, resolved. It is not an issue of equal protection of the law because both parties are treated equally." Id.,

at 8-9. In other words, by simply reciting the magic words, "irretrievably broken," M established the presumption that the marriage was "defunct" and those words were all the evidence needed for the trial judge to determine that a divorce was required Further, S could not bring any evidence in to rebut that presumption. Such an irrebutable presumption is unconstitutional because is violates due process of law and equal protection of the law. Irrebutable presumptions are condemned by both the United States Constitution and by the State of Washington. Presumptions enable state governments to process certain types of cases with speed and efficiency. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L.Ed. 2d 551 (1972).

When that presumption becomes conclusive, and cannot be overcome by proof of the most positive character, that law violates the Equal Protection Clause of the United States Constitution. Id.

The State of Washington decided that conclusive presumptions violate the due process clause of the Fourteenth Amendment to the United States Constitution. "A statute which creates a presumption which is arbitrary, or which operates to deny a fair opportunity to repel it, violates the due process clause of the fourteenth amendment to the United States Constitution. Ware v. Phillips, 77 Wash. 2d 879, 468 P.2d 444, 448 (Wash. 1970). In 1959 the Supreme Court of Washington condemned a statute which made it unlawful "for anyone not lawfully authorized to frequent, enter, be in, or be found in, any place where narcotics, narcotic drugs or their derivatives are unlawfully used, kept or disposed of."

City of Seattle v. Ross, 54 Wash. 655, 344 P.2d 217 (Wash. 1959). In that case the Defendant, Mr. Ross, went to a friend's apartment to borrow money. He had no knowledge that drugs were in the apartment when he was arrested. However, the court was of the opinion that the purpose of the ordinance was to penalize any one found upon the premises, regardless of the innocence of his errand, and he was fined $25.00 and a thirty-day jail sentence. Id., at 217-18. Ross appealed, arguing that the ordinance creates a conclusive presumption that he was on those premises for an unlawful purpose unless he can show that he was authorized by some agency of government to go upon the premises. Id. He pointed out that in a place where narcotics were illegally kept there were usually no external signs of their use which would warn a person of the presence of such narcotics. Id.

The court had no problem concluding that "the effect of the ordinance is to create an irrebutable presumption that any person found in proximity to unlawfully kept narcotic drugs and not carrying with him some official authorization is guilty of participating in the narcotic traffic." Id.

The court agreed that the purpose of the statute was to "facilitate the discovery and apprehension of persons engaged in such traffic and was enacted in the exercise of the city's police power." Id.

However, the "irresistible force" of this statute was not a reasonable exercise of the city's police power, the court concluded. Id., at 219. The court noted that the interests of the public may be like an irresistible force which compels where it requires, "it nevertheless must, under constitutional provisions, both federal and state, respect the rights of the individual. While the latter may not occupy the fixity of an immovable object, they nevertheless have the protection and sanction of the fundamental law of the land, and they recede before no less a force than that of public necessity." Id., at 219, citing Patton v. City of Bellingham, 179 Wash. 566, 38 P.2d 364. "To sustain the individual freedom of action contemplated by the Constitution, is not to strike down the common good, but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members."

Id., citing Adkins v. Children's Hospital, 261 U.S. 525, 561, 43 S. Ct. 394, 402, 67 L.Ed. 785 (1923). A legislative body may create a presumption of one fact from evidence to another having a rational connection therewith, without denial of due process or equal protection of the law. Id.

However, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts." Id., citing Mr. Justice Roberts in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943).

The Washington Supreme Court concluded its analysis of the statute by stating: "Furthermore, a statute creating a presumption which is arbitrary or which operates to deny a fair opportunity to repel it, violates the due process clause of the fourteenth amendment to the United States Constitution." Manley v. State of Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L.Ed. 575 (1928). "By the same token, if an irrebutable presumption of guilt is created by city ordinance, any deprivation of life, liberty or property by virtue of such ordinance is a deprivation without due process of law." Id., at 219. Washington's no-fault divorce has the same irresistible force that the drug premises law had in Ross.

A close reading of the statute reveals that the trial judge in this case was correct: "The evidence with regard to an irretrievably broken marriage, it cannot be rebutted; it is a nonrebuttable situation."

RP 8. The Petitioner for a divorce must allege that the marriage is "irretrievably broken." R.C.W.A. 26.09.030 (West 1999). After that allegation, the court shall: Enter a decree of divorce if the other party joins in the petition or does not deny it. R.C.W.A. 26.09.030(1); Make a finding regarding fraud, if the petitioner brought the petition fraudulently, the court shall dismiss the petition. R.C.W.A. 26.09.030(2); Consider all relevant factors and the prospects for reconciliation if the other party denies that the marriage is irretrievably broken and then the court shall: Decide that the marriage is irretrievably broken and enter the decree; or transfer the case to mediation, and reconsider the issue of reconciliation at a later date. R.C.W.A. 26.09.030(3)(a)(b)(I)(ii).

The Petitioner has no choice but to utilize the only ground for divorce available to him. Donaldson v. Donaldson, 38 Wash. 748, 231 P.2d 607, 612 (1951). Courts in Washington State have from time to time reversed divorces which were granted on the basis that there was no evidence in support of the allegations. See Neff v. Neff, 30 Wash. 2d 593, 192 344 and Fix v. Fix, 33 Wash. 2d 229, 204 P. 2d 1066, 1067, cited in Donaldson, at 231 P.2d 612. In spite of Washington State's historical tradition of inquiring into the reasons why a marriage is "irretrievably broken, " the legislature changed the law with the intent to "hasten the day when a dissolution can be effected, where a marriage is in fact defunct." Little v. Little, 96 Wash.2d 183, 634 P.2d 498, 501 (1981). A marriage in Washington State is "defunct" when the parties to the marriage no longer have the will to sustain it. In re Marriage of Short, 125 Wash. 2d 865, 890 P.2d 12, 15 (1995).

In other words, when the deserted spouse accepts the futility of hope for restoration of a normal marital relationship, or just acquiesces in the separation, the marriage is considered "defunct" so that the "living apart and separate" statute applies. Id. In a case in which the marriage is declared "defunct" there was some action on the part of the spouses which indicated that they had renounced the marriage relationship. Rustad v. Rustad, 61 Wash. 176, 377 P.2d 414, 416 (1963).

In Rustad, the wife was confined for life in a mental institution, and the husband could have obtained a divorce. However, he did not choose to do so; and the record was devoid of any evidence that he ever renounced or denied the marriage relationship. Id. In the face of this evidence, the defunct marriage doctrine as it applied to the living apart and separate doctrine did not apply. Id.

However, unlike cases in which the defunct marriage doctrine is applied, the judge in a no-fault divorce has no function in evaluating the evidence with respect to its grounds. Little v. Little, 634 P.2d at 501. This is to effectuate state policy to expedite the prompt termination of unwanted marriages. Id., at 505. "Absent fraud, or coercion, the allegation that the marriage is irretrievably broken is all that is required to support a decree of dissolution."

Id., at 503. The state's expressed purpose in creating this presumption is for the convenience of the petitioner in order to avoid "the strife, vindictiveness, and bitterness which proof of 'fault' engendered, to no useful or desirable purpose." Id., at 501. A defunct marriage is one in which neither party to the marriage desires the marital relationship to continue. The state policy supporting no-fault divorce is to hasten the termination of those marriages which are, in fact, defunct.

However, S explicitly stated on several occasions that she believed the marriage could survive. She never abandoned hope that the marriage could be saved. She consistently stated that with marriage counseling her marriage could be revived. She never acquiesced to the separation. However, her husband's testimony that the marriage was "irretrievably broken" is a "fact proved" that created the presumption that the marriage was, in fact, defunct.

Under ordinary rules of evidence, S's denial that the marriage was "irretrievably broken" would have been sufficient to rebut the presumption M's testimony created. A presumption which is rebutted is destroyed and no longer has any probative effect. In this case, the fact proved, that M really believed the marriage was "defunct," led to the presumption that the marriage was defunct. S never had the chance to prove otherwise.

The expressed purpose of the no-fault divorce statute was to prevent S from having a voice in court. The judge had no role in evaluating evidence. He was required to ignore S's denial. He was required to hear M state that the marriage was over.

The judge cannot evaluate the evidence and decide based upon the facts of each particular case. Instead, he must grant the relief requested in spite of S's protestations that the marriage is not over. If S had been heard, the trial judge could have decided that the marriage was not defunct. In fact, the marriage was not defunct under application of Washington State's living apart and separate statute.

Although M had renounced the marital relationship by his filing a divorce petition, S had not. The trial court could have heard S detail all the ways she was willing to work to restore the marital relationship. She could testify regarding her attempts to reconcile, and the resources which could have been utilized to help bring the couple back to a harmonious relationship. On the other hand, if M had been required to prove that the marriage was in fact irretrievably broken, the trial judge could have heard that evidence and decided that M's testimony was simply not credible or sufficient. It could have been subject to cross-examination.

It is simply not true that all divorce cases engender "strife, vindictiveness, and bitterness" as the Supreme Court stated in the Little decision. Some people who get along perfectly well seek a divorce. It is against public policy to divorce a couple for no other reason that they wanted to be released from the mutual obligations of marriage.

If the trial judge were required to hear testimony from a happy couple, he could correctly decide that their marriage was not irretrievably broken. Instead, he could decide that the couple was simply escaping an otherwise normal marital relationship for no reason at all. Presumptions help litigants with certain procedural shortcuts on their way to eventual trial on the merits.

However, in this case, the procedural shortcut completely eliminated S's right to be heard. It is the right to be heard which distinguishes our constitutional form of government from those governments which do not value individual rights. .While S remains under the jurisdiction of this court, she has the absolute right to defend her marriage, and any attempts to take that right away by procedural shortcuts violates the United States and Washington Constitutions.

There is no rational reason to deny S her day in court by way of an irrebutable presumption that the marriage is "irretrievably broken." R.C.W.A. 26.09.003 is unconstitutional and must be declared invalid. Assignment of Error Number 4 4. Washington's judicial determination that marriage depends upon the consent of the parties violates the constitutional definition of marriage, and is thus unconstitutional. Standard of review is strict scrutiny under the Fourteenth Amendment to the United States Constitution.

The Constitution of the United States is the supreme law of the land. Wash. Const. Art. 1 § 2 (1889). The Washington Supreme Court is bound by decisions by the United States Supreme Court in examining the scope of fundamental rights guaranteed by the United States Constitution. Orians v. James, 84 Wash. 2d 819, 529 P. 2d 1063, 1064 (1974)(Court is bound by rulings of U.S. Supreme Court regarding First Amendment Rights). Marriage has been defined in a decision of the United State Supreme Court, and that decision has not been overturned. See, Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 2d 654 (1888).

Therefore, the law of marriage in Washington State is defined by any United States Supreme Court cases which define marriage. The Maynard v. Hill decision came out of the Supreme Court of the Territory of Washington and concerned ownership of certain lands in Kin County, Washington Territory. Maynard v. Hill, 125 U.S. at 191. The marriage involved was dissolved by a legislative divorce granted on December 22, 1852 by the legislative assembly of the territory. Id. The case gave Justice Stephen J. Field the opportunity to set forth the minimum requirements of marriage in the United States, and the opinion stands as the premier decision regarding marriage in this country. Justice Field must be commended for his extensive legal scholarship regarding marriage, and the decision stands upon firm ground.

The concept of fundamental rights is mentioned in the decision, and rules regarding marriage are compared from several different states and countries, including England, New York, Maryland, Connecticut, Massachusetts, Missouri, Maine, Kentucky, Rhode Island, and Indiana. Id. With such bountiful authority, S should be able to assume that the law of marriage set forth in Maynard v. Hill is the same law of marriage her home state of Washington should adopt.

Marriage is a civil contract, as distinguished from a religious sacrament, and consent of the parties to the marriage is necessary to its legal validity. Id., at 213. Marriage cannot be dissolved by the parties when consummated, not released with or without consideration. Id. The relation is always regulated by government. Id. "It is more than a contract. It requires certain acts of the parties to constitute marriage independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community." Id.

The contract to marry is distinguished from the marriage relationship itself. Id. "At common law, marriage as a status had few elements of contract about it. For instance, no other contract merged the legal existence of the parties into one. Other distinctive elements will readily suggest themselves, which rob it of most of its characteristics as a contract and leave it simply as a status or institution." Id. (Emphasis in original). "As such, it is not so much the result of private agreement as of public ordination. In every enlightened government it is pre-eminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity." Id.

The State of Washington treats marriage as a relationship which can be terminated by the agreement of the parties. R.C.W.A. 26.09.030(1)(West 1999)(A respondent to a divorce action can join in the petition or refuse to deny the allegations). The doctrine of living separate and apart, set forth in detail above, is simply another method by which the parties to a marriage decide themselves that the marriage is over.

However, the United States Supreme Court views marriage as a relation for life, not a private contract which can be terminated by the consent of the parties to it. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Id., at 211. "Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation, once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress."

Once a marriage is established, "the power of the parties as to its extent and duration is at an end. Their rights under it are determined by the will of the sovereign, as evidenced by law. They can neither be modified nor changed by any agreement of the parties. It is a relation for life, and the parties cannot terminate it at any shorter period by virtue of any contract they may make." Id.

Marriage is subject to the control of the legislature. Id., at 205. The legislature determines the acts which may constitute grounds for the dissolution of marriage. Id. Therefore, with these principles regarding marriage being established as the supreme law of the land through the voice of the United States Supreme Court, the State of Washington cannot establish any other law of marriage. Marriage is a relation for life which cannot be terminated at any shorter period of time by agreement of the parties. It is not the consent of the parties which determines whether a marriage, is in fact, defunct. It is the judicial determination of a court that determines the acts which may constitute grounds for the dissolution of marriage.

One of the specific things that cannot constitute such acts is the consent of the parties that the marriage is dead. The law of Maynard v. Hill clearly indicates that the State of Washington is in exclusive control of marriage. However, the state cannot define marriage less strictly than it is defined by the United States Constitution. Marriage is a relation for life which cannot be terminated by the agreement or consent of the parties.

To the extent that Washington law allows a marriage to be terminated by consent of the parties, Washington law is in conflict with the Constitution. Washington law must give way to the Constitution, and any provision of Washington law which provides for divorce by consent, whether in R.C.W.A. 26.09.030, or in the living separate and apart doctrine, must give way.

The law of divorce cannot define the law of marriage. Only the state legislature can define those "acts" which constitute "grounds" for divorce. The legislature has completely abandoned the concept that "acts" are needed to justify the granting of a divorce. Only the "words" of the petitioner are needed, without reference to any "acts" by anyone.

The basic thrust of no-fault divorce is to provide the court a method to grant a divorce without any reference to facts at all. Therefore, for these reasons, S asks the Court to declare that marriage in this State is a relation for life which cannot be terminated by agreement or consent of the parties and any other statute or court decision to the contrary is void as against public policy.

Assignment of Error Number 5 5.

Statutes allowing for divorce do not provide meaningful defenses to persons resisting a divorce. Defenses at common law included recrimination, adultery, condonation, and factually insufficient testimony. The lack of these defenses violates due process rights afforded all litigants and are therefore unconstitutional. Standard of review is strict scrutiny because the fundamental right to marry is at issue.

Assignment of Error Number 6 6.

Trial judge's ruling that no testimony regarding the marriage would be heard violated S's right to due process of law, and reversal for rehearing is required. Standard of review is abuse of discretion. The trial judge ruled that S could not put on any evidence in her defense. This clearly violates her right to defend herself in court, and reversal is required in order for her to put on evidence which would rebut the Petitioner's allegations and prove her defenses to the divorce action.

In her statements to the Court, S consistently stated that her religious belief was that marriage was a sacred covenant, ordained by God. She has consistently stated that the covenant is for life. However, the state law of Washington allows her husband to divorce her without any cause whatsoever, and in fact, the state law seems to encourage divorce. The Bible specifically states that God hates divorce. Mal. 2:16. Jesus himself condemned divorce unless adultery had occurred. Matt. 19:4-10. As the first book of the New Testament, most Christians are familiar with Jesus' teachings on the subject, and consider His word to be the final authority on the subject. The Pharisees came to Him and asked Him about divorce, as a test. Id., at 3.

It was a test because the Jews believed that a man or a woman could obtain a divorce for any cause. Deut. 4:24. Jesus replied to their question, "It is lawful for a man to divorce his wife for just any reason?" The Pharisees were asking Jesus if He believed no-fault divorce was legal. Jesus replied by citing Genesis, and the familiar saying that God made male and female, and said, "For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh." Matt. 19:4-5. "So then, they are no longer two but one flesh. Therefore, what God has joined together, let not man separate." Id., at 6. Jesus replied to the Pharisees who asked why God had given the Jews no-fault divorce with the answer, "Moses, because of the hardness of your hears, permitted you to divorce your wives, but from the beginning it was not so." Id. At 8.

Then, Jesus stated that the only ground for divorce was for "sexual immorality" or adultery, and went on to say that whoever married a person who was divorced committed adultery. "And I say to you, whoever divorces his wife, except for sexual immorality, and marries another, commits adultery; and whoever marries her who is divorced commits adultery." Id., at 9. The disciples were astonished at this preaching, and told Jesus, IF such is the case of the man with his wife, it is better not to marry." Id., at 10.

In S's eyes, the state government is endorsing something God hates, and that her husband has no Biblical grounds for divorce. The mandatory divorce on demand statute enacted by the Washington legislature is contrary to S's religious beliefs, and that statute molests and disturbs her because of her religion. Wash. Const. Art. 1, § 11 (Adopted 1889, 1958 amendment).

The issue of religious beliefs has arisen in Washington law in the case of Mertens v. Mertens, 38 Wash. 2d 55, 227 P.2d 724 (1951). In that case the husband complained of the wife's excessive religious zeal, and filed for divorce alleging cruelty. The trial judge heard all the evidence, and denied the divorce, believing that the wife's religious beliefs insulated her from a charge of cruelty. He ruled that the wife "had been guilty of no conduct which is cruel or calculated to subject the plaintiff to personal indignities rendering his life burdensome." Id., at 726.

The Washington Supreme Court did not agree with the trial judge's conclusion that the State's strong protection of religious freedom protected the wife from charges of cruelty, and remanded the case to the trial court for further findings of fact. "There is no question that our state constitution protects the free exercise of religious beliefs." Carrieri v. Bush, 69 Wash. 2d 536, 419 P. 2d 132, 137 (1966).

If that is the case, the state government has no right to deny S the right to defend her marriage on religious grounds. Her strong belief - one shared by millions of persons of faith in this country - is that marriage is a sacrament and a holy covenant, to be broken only in the most dire of circumstances. State government has completely abrogated her ability to defend her marriage against attack by her husband.

The purpose of state government is to protect and uphold the free exercise of religion. Many churches do not allow divorced persons to serve in leadership positions. Without a defense to a divorce action, otherwise worthy persons are completely denied the opportunity to fully express their religious beliefs by participating as a leader in a church because their spouse divorced them without recourse.

A simple defense to divorce would prevent many divorces, and allow many people of faith to completely act out their faith with service to the church. Jesus was condemned on the false testimony of many witnesses. Matt. 26:60-61. He did not answer them because of His divine appointment with the cross. Id., at 63. S is not required to remain silent and suffer the termination of her marriage. She demands that her religious beliefs be respected by the state of Washington, and that the no-fault divorce statute be declared void because it infringes on her right to enjoy a lifetime covenant marriage promised to her by the teachings of the Bible.

ARGUMENTS

Common law provided extensive defenses to a divorce action, foremost among them the defense of recrimination. Recrimination as a defense does not appear in the Washington family law; however, S should have the opportunity to prove that she is the lesser guilty party, and the divorce should be denied. Volume 19 of Corpus Juris, published in 1920, has a full and complete exposition on the defense of recrimination, which deserves extended quotation here.

Recrimination--

1. General Rule. Divorce is a remedy for the innocent against the guilty; hence if both parties are equally at fault, a divorce will not be granted. This is known as the doctrine of recrimination, and rests upon the equitable maxim that he who comes into equity must come with clean hands; but the rule is not infrequently relaxed on grounds of public policy or the peculiar exigencies of the case, and comparative rectitude is considered.

2. Offenses Pleadable in Recrimination--

a. In General. The general rule is that, to constitute a defense of recrimination, the misconduct of which complainant is guilty must be such as in itself to afford defendant ground for divorce. This, it has generally been held that cruelty as a recriminatory charge must amount to legal cruelty. Plaintiff must also have committed the misconduct knowingly and without connivance, justification or excuse. Thus a wife who, after being deserted by her husband, contracts a second marriage in the bona fide belief that her first husband is dead is not thereby barred from obtaining a divorce from the first husband because of her adultery, provided that she ceased cohabitation with the second husband as soon as it came to her knowledge that the former husband was living. Adultery as a recriminatory charge is not sustained by a mere belief, although justified by gravely suspicious circumstances; nor is a mere intention on complainant's part for form an adulterous connection sufficient to defeat his action.

b. Same Offense as That Complained of. Since a divorce cannot be granted if the parties are equally at fault, it follows that if complainant has been guilty of the same offense as defendant, there can be no divorce. Thus if complainant has committed adultery, no divorce can be obtained on the ground of defendant's adultery. So if complainant has been guilty of cruelty, a divorce cannot be obtained because of defendant's cruelty, and assuming that both parties can be guilty of desertion, the doctrine of recrimination applies and neither is entitled to a divorce.

c. Different Offense from That Complained of. In some jurisdictions, either by force of precedent or by statute, an offense committed by plaintiff in order to be effectual as a plea in recrimination must be of the same character as that relied on by him as a ground for divorce. The general rule, however, is that the offense pleaded in recrimination need not be of the same nature as the offense which the defendant has committed, but any misconduct on the part of the complainant without reference to the nature of the offense of which he complains.

Accordingly, in most jurisdictions adultery is a bar in recrimination to a suit for divorce based on defendant's cruelty, and in some jurisdictions on defendant's commission of an infamous crime. So too it has generally be held that adultery is a bar in recrimination to a suit for divorce based on defendant's desertion. 19 C.J. Divorce §§219-221 (1920).

The doctrine of recriminatory defenses is of ancient origin and is as old as the rules of equity. Id., citing Stoneburner v. Stoneburner, 83 P. 938 (Idaho Sup. Ct. 1906). The defense was recognized by the Hebrew Law (Deuteronomy 22:13-19) and seems to have formed a part of the civil and canon law. Id., citing Proctor v. Proctor, 2 Hagg. Const. 292; Beeby v. Beeby, 1 Hagg. Const. 789, 3 Eng Eccl 338. In Hebrew Law, a man was able to write a certificate of divorce to his wife, and divorce her. The biblical text is as follows: When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some uncleanness in her, and he writes her a certificate of divorce, puts it in her hand, and sends her out of his house, when she has departed from his house, and goes and becomes another man's wife, if the latter husband detests her and writes her a certificate of divorce, puts it in her hand, and sends her out of his house, or if the latter husband dies who took her as his wife, then her former husband who divorced her must not take her back to be his wife, after she had been defiled; for that is an abomination before the Lord, and you shall not bring sin on the land which the Lord your God is giving you as an inheritance.

Deuteronomy 24:1-4. However, if a man brought an unjust accusation against his wife, "he cannot divorce her all his days."

Deuteronomy 22:19. This is the passage of the Bible which the annotators of Corpus Juris cited as the biblical justification and source of the doctrine of recrimination.

19 C.J. Divorce § 219, fn. 78[b] (1920). If divorce statutes make no mention of recrimination, "the court will assume that the legislature intended to adopt the general principles which had governed the ecclesiastical courts in England in respect thereto, so far as those principles are applicable and reasonable." Id., § 219, fn. 78[c], citing Morrison v. Morrison, 8 N.E. 59 (Sup. J. Council, Mass. 1886); Robbins v. Robbins, 5 N.E. 837 (Mass. 1886).

Other common law defenses to divorce included adultery, condonation, and connivance. No mention is made of these defenses in Washington statutes. S has the absolute right to defend herself in court. The fundamental rule of due process of law is that "persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that 'wherever one is assailed in his person or his property, there he may defend.' Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 785, 28 L.Ed. 2d 113 (1971). "Due process of law signifies a right to be heard in one's defense." Id., at 786. "There can be no doubt that at a minimum (the abstract word of the due process clause) require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Id.

An individual must be given a hearing before he is deprived of any significant property interest. Id. A state must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. Id., at 787.

The right to a meaningful opportunity to be heard must be protected against denial by particular laws that operate to jeopardize it for particular individuals. Id. The state owes to each individual the process which, in light of the values of a free society, can be characterized as due.

Id. In Boddie v. Connecticut, a state law which had the practical effect of refusing to admit people who wanted a divorce from obtaining one was the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages, and was a denial of due process. Id. The persons seeking a divorce had to prove their contention that their marriages were untenable, but it was a denial of due process to have a fee which was beyond their financial means. Id., at 788.

The operation of the statute operated to cut off entirely access to the courts by the appellants. Id., at n. 9. S's right to defend her marriage is similarly cut off. Statutes provide absolutely no method by which she can introduce evidence of her husband's comparative guilt, and thereby attempt to deny the divorce petition. As the trial judge stated, "There is no ability to defend that marriage itself in a court of law under the laws of this state. So, that issue is, again, resolved. It is not an issue of equal protection of the law because both parties are treated equally." Id., at 8-9.

There is no ability to defend that marriage itself. The judge must be mistaken or the constitution has no power. His statement that both parties are treated equally is wrong. M won. S lost.

There is a huge difference of treatment with that result. The court must decide which gives way: the power to grant divorce on demand with no defense, or S's right to defend herself in court. S must have methods by which she can effectively defend herself against a divorce petition. The Constitution guarantees her that most basic right.

This court should remand this case back to the trial court for the fashioning of sufficient defenses to allow S to defend herself effectively.

Conclusion

Washington State's no-fault divorce scheme, its statutes and case law implement it, is unconstitutional. The irrebutable presumption created by the statue violates S's right to due process of law and her right to equal protection of the law.

Marriage cannot be defined downward, and any attempt to define marriage as anything but a lifetime covenant relationship denies S due process of law and equal protection of the law.

Any attempt to take the sacred out of marriage, and make marriage into simply a civil institution, dissolvable upon demand, deprives S of her right to religious freedom. For these reasons, Washington's no-fault divorce statute, R.C.W. A. 26.09.030, is unconstitutional and must be declared void.

Respectfully submitted, ______________________________

S. G. pro se

 

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