PART 1 – 1970 to 1999
Blogger’s Note: the discussion that follows reflects only my own research and independent thought, and does not necessarily reflect the advice of my attorneys
My divorce attorney and I caught the commuter train together to travel downtown and present our appeals case to constitutional attorneys whose specialty is religious freedom cases. I had been googling and downloading various divorce appeals cases for weeks where challenge had been brought to the constitutionality of the unilateral divorce regime in other states, while looking for the history of such cases in Illinois, religious (1st Amendment), and secular (14th Amendment). I wanted to know what I was getting into with a constitutional appeal, and whether I could hope to find the resources to sustain one. I wanted to know how such a blatantly harsh law could survive challenge, when it stripped constitutional protections from the spouse who wanted to heal their marriage, and handed everything on a platter to the spouse who had already behaved destructively toward the marriage, had then brought the petition, and stood to gain financially from it at the other spouse’s expense and that of the rest of the family. What sort of rationale was the constitutional portion of my appeal going to face?
I knew from the way I was being bullied by the trial court that, at a very minimum, my First Amendment rights to freedom of conscience and biblical conduct had been seriously violated. I had been chided by the judge and by opposing counsel for attempting to disprove the statutory grounds with legitimate evidence. I had quoted Luke 16:18 from the witness stand concerning the utter illegitimacy of the concept of “irreconcilable differences” and “irretrievable breakdown” between a brother and sister in Christ. When I was reminded by the judge that the absolute right to dissolve one’s marriage for no cause was the law of the land, I sealed my economic fate in that courtroom by affirming the power and authority of God’s law, stating “God’s law is higher than man’s law” and stating that God’s law forbids irreconcilable differences. I also knew that although I was the non-offending spouse who believed biblically that I was married for life in God’s eyes and I never asked to live separately or any other way except with the husband I still dearly loved, the court was seeking to award my husband a sizeable portion of my retirement savings just because my balance was larger than his – and marital misconduct (his expensive years of adultery) could not be taken into consideration by the court, according to the Illinois statute which appeared to be blatantly violating the Fourteenth Amendment, …yet,
The Illinois constitution reads as follows, in the Bill of Rights:
SECTION 1: INHERENT AND INALIENABLE RIGHTS… to secure these rights (life, liberty and the pursuit of happiness) and the protection of property, governments are instituted among men deriving their just powers from the consent of the governed.
SECTION 2: DUE PROCESS AND EQUAL PROTECTION – No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.
This is verbatim the U.S. Constitution, and each state constitution for the cases I read had analogous provisions. If this was so, why hadn’t a case made it to the U.S. Supreme Court, if the state courts were not upholding their own constitutions in these unilateral divorce appeals?
The principle of Federalism weighs pretty heavily here. Since the U.S. Constitution left all marriage law to the states and took no authority for the Federal government, it is a blessing that state constitutions emulate the U.S. Constitution in these key provisions. Nobody can attempt to bring an appeal on a marriage case before any Federal court until it has (very expensively) worked its way through the state appeals courts. Shockingly, in case after case, state after state, those state supreme courts ruled that they were required to construe duly-passed legislation in a way that presumed constitutionality, and the burden was on the individual bringing the appeal to prove the state’s aims weren’t legitimate on any level(while at the same time allowing no evidence of the unwise or corrosive impact of the law as a whole).
Dissenting minority opinions to those state supreme court decisions asserted arguments including
(1) objection that Petitioners are given control of the proceedings while sometimes lacking “clean hands” (implying an equal protection problem with regards to the legitimacy of the grounds for divorce) – FLORIDA (1973)
(2) objection that some statutory wording of the grounds for divorce impacting three states, excluding Illinois, violates the Establishment clause by entangling the state in impermissible religious inquiry – TEXAS (2001)
(3) objection that Respondents’ right of conscience must not be violated in the granting of “no-fault” divorce unless the statute can stand when tested under the Religious Freedom Restoration Act – TEXAS (2001)
What I have just described is the concept of “Rational Basis” being applied by the majority in a typical three-judge panel in all the constitutional appeals cases to-date. Absent some basis on which to prove intentional legislative discrimination or disparate impact against a politically disenfranchised “suspect class” which deprives them of their fundamental rights, state appellate and supreme courts are going to impute “due process” to any regime that can be shown to be reasonably connected to some “legitimate” government aim, even if innocent parties are substantially harmed by offending parties, and even if society is harmed rather than benefited, as many cases have gone into court with empirical evidence that has been consistently dismissed. I could find no relevant state case that has ever been accepted for hearing by the U.S. Supreme Court in all the years since 1970 up to the present, that is, until all of the homosexual cases came along, armed with equal protection victories in the lower courts and with government entities appealing.
In 1986, a religious freedom case brought by non-attorney citizen Judith Brumbaugh of Florida, was docketed at the U.S. Supreme Court, but was declined without hearing “for want of a Federal question”. There normally has to be a disagreement about constitutionality among several states and their corresponding regional Federal circuits before the U.S. Supreme Court will take on a marriage case. In 2013-2014, however, judicial activists planted in the court system, principally by President Obama but also by earlier administrations, have greased the skids and changed the precedents for marriage cases because of the lawsuits against governments brought by homosexual activists seeking marriage rights and recognition. This development could present a potential turning point in the eventual defeat of unilateral divorce for several reasons.
What follows is a synopsis of some key state cases ruled on appeal since shortly after first unilateral divorce laws were enacted 45 years ago. A handful of these cases are religious freedom / discrimination cases, but most are based on either Article 1 Section 10, asserting impairment of the marriage contract, or the 14th Amendment Due Process and Equal Protection clauses or both. I believe they are interesting to study, and they show that there has been persistent spirited resistance over the years to the unconstitutional nature of unilateral divorce both by citizens, and even by a handful of dissenting judges.
- Walton v Walton, California (1970-1972) 28 Cal. App.3d 108
In the first state to enact unilateral divorce, and in the first year following enactment, the husband brought a unilateral petition where strict allegation of “irreconcilable differences”, not further defined in the statute, was accepted as irrefutable evidence of breakdown in a marriage of more than 20 years duration. In circumstances most likely beyond the Respondent wife’s control or consent, the couple had been said to have lived apart without a legal separation for over two years.
(SIFC commentary: According to a plurality of behavioral science studies, two years is the average life for infatuation typically associated with an uninterrupted and unimpeded adulterous relationship, a time period over which an innocent conscientious moral objector to divorce has no control and little influence.)
In a situation much like mine, the embattled wife felt compelled to assent to the existence of “irreconcilable differences” in court documents, in an attempt to protect her property rights under the law. Unlike me, however, she lacked the biblical imperative of answering first to God to resist doing so, and the appeals court held that fact against her in its determination. Additionally, she was at the time of her appeal seeking separate maintenance under the same statute as an alternative to dissolution of the marriage, most likely for financial dependency reasons. This fact unconscionably worked against the deemed validity of some of her appeal points. Lastly, and keeping in mind that this was a groundbreaking new law at the time, the appeals court stated that she (or her attorneys) failed to invoke some “discretionary” powers of the trial court to hear evidence of the marital misconduct that was nevertheless barred by the statute, and therefore, according to the court, she waived consideration of the due process aspect of the marital misconduct clause.
The appellate court rejected all of the wife’s secular constitutional assertions: (1) impairment of the marriage contract by ex post facto change in grounds definition, (2) statutory vagueness of “irreconcilable differences” as a grounds for divorce, (3) exclusion of marital misconduct constitutes a violation of due process over property rights, (4) the double-standard that connects the Respondent’s compelled assent to the existence of “irreconcilable differences” to the procedural protection of her property rights constitutes a violation of constitutional equal protection guarantees, (5) “irreconcilable differences” grounds deprives spouses of their vested interest in their marital status without due process.
As in all subsequent cases, the Article 1, Sec. 10 argument that the marriage contract should be protected in the same way as a commercial partnership contract from impairment by legislative changes was defeated by the U.S. Supreme Court case Maynard v. Hill, which was almost 200 years old at the time of this appeal. However, if that is a fixed and unchangeable precedent, then one of the chief rationales for the exclusion of marital misconduct as a factor in determining property division, on the theory that the marriage is an equal “economic partnership”, should also be constitutionally invalid on the same consistent basis.
I highlight an egregious statement made by the court because there was no heightened scrutiny protection afforded to this wife as one of the first members of a politically disfavored class from whom fundamental rights were being stripped, while the appeals court majority claimed she did not suffer this fundamental rights deprivation without due process of law:
“The state’s inherent sovereign power includes the so called “police power” right to interfere with vested property rights whenever reasonably necessary to the protection of the health, safety, morals, and general well being of the people. The constitutional question, on principle, therefore, would seem to be, not whether a vested right is impaired by a marital law change, but whether such a change reasonably could be believed to be sufficiently necessary to the public welfare as to justify the impairment.”
Standerinfamilycourt believes that use of the term “interfere” in this opinion severely trivialized the impact to this wife and to their shared family, and deflected attention from the fact that a fundamental right was being violated in a way that merited heightened scrutiny. The court should have required the state to prove the necessity of the law as the least impairing and restrictive means of protecting the health, safety, “morals” (a heinously subjective term) and wellbeing of the people. However, the court did not have the empirical evidence we have today that the law has accomplished exactly the opposite of what this court described as a “compelling” state interest ( a legal term, the use of which would have in later years required the state to carry the burden of proving, nevertheless). Case law that would set a precedent for applying the correct level of judicial review to properly address the stripping of fundamental rights from a disenfranchised class on a basis other than race, gender, nationality, etc. would not start developing for another 5 years after this ruling.
There was no dissenting opinion in this proceeding.
2. Ryan v Ryan, Florida (1973) 277 So.2d 269 State Supreme Ct
Another very early case in a state that replaced all previous grounds definition with “irreconcilable differences” which was left to the discretionary judgment of the court and not further defined in the statute. The effect was that the petitioning spouse needed only to make the allegation and prove residency, and their non-offending spouse was effectively precluded from defending against it. There was chatter in the opinion to the effect that the finding of “irreconcilable differences” did require some evidence of “irretrievable breakdown”, but at the same time admitted that the evidence could be uncorroborated, and that the decision relied entirely on the court’s discretion.
Unlike the previously mentioned Florida Brumbaugh case from the 1980’s that follows, this case was entirely secular, raising all of the same issues as the Walton case did in California the prior year, and substantially the same points made in the appellate ruling.
The copy I pulled down without a legal subscription lists only the arguments and the findings without citing any facts from the case. One point is raised, however, that probably also impacted the Walton case but was only alluded to and not explicitly addressed in that case. I find the point interesting because it provides quite a contrast with our case, given how society its economic structure has changed in the intervening 40 years. In both the Walton and Ryan cases, the wife was economically dependent on the husband who was unilaterally divorcing her. They had both been homemakers in a day when women had far fewer opportunities to carry on a self-sustaining economic life. While there were provisions in the “no-fault” law for dividing retirement assets to a financially dependent spouse, and providing for economic maintenance, both wives were appealing constitutionally because they were being deprived of vested property rights in their husbands’ future accumulation when they had committed no offense against the marriage, hence being deprived of constitutional due process. (I can’t say that I disagree with Mrs. Ryan in her situation as a non-offending spouse, because I believe it is inherently unconstitutional to grant a contested divorce without proof of harm to the marriage, but the appeals courts disagreed). The ruling cited the following assertion previously made by the same court:
“During the life of the husband, the right [to inherited property or appreciation in the full marital estate] is a mere expectancy or possibility. In that condition of things, the lawmaking power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish or otherwise alter it or otherwise take it away.” They went on to say the same principle applies to every other type of named or potential heir to a person’s estate.
(SIFC commentary: Contrast that bygone era with the more contemporary situation where a self-supporting, financially independent offending spouse can use a divorce petition and an unconscionable law to leverage a sizable portion of the non-offending spouse’s assets because a U.S. Supreme Court decision that preceded enactment of the unilateral divorce law by 200 years declined to uphold the marriage contract in the same fashion as other contracts, yet the law itself equates the two for property divisions purposes only.)
The court further stated that “due process” was met upon a provision of notice and an opportunity to be heard. This limited the discussion to procedural due process, ignoring substantive due process rights, and did not take into account the judicial stifling of the “opportunity to be heard” imposed by typical court operating rules that give the favored Petitioner far more latitude to present evidence than the disfavored Respondent.
Highlights of Dissenting Opinion (SIFC could not do this justice by paraphrasing, so here’s the conclusion, verbatim):
R ROBERTS, Justice (dissenting).
A large body of case law extending over a long period of years, written by many eminent and distinguished jurists has repeatedly reiterated that the “clean hands” doctrine does most assuredly apply to divorce suits.
To hold otherwise would impute to the lawmakers a total lack of interest in the faithful spouse who over a long period of years has suffered abuses and indignities, but who is forced to accept a divorce not because of his or her own wrongdoing, but because the offending spouse has mutilated the marriage. The innocent party’s objection to the divorce may well be for good reason, and it seems to me after having been a member of the Bar for 44 years, and a member of this Court for 23 years, to be an odd legal pronouncement to say that an offending spouse could profit by his own misconduct and obtain the sought for divorce because of his or her own wrongdoing and abuses.
Under the majority view a wrongdoing husband can come home every Saturday night for five years, drunk and penniless because of skirt-chasing, gambling, or some other misdeeds; then, he may beat, bruise and abuse his wife because he is unhappy with himself, and then he will be permitted to go down and get a divorce on printed forms purchased at a department store and tell the trial judge that the marriage is “irretrievably broken”. Or, the offending wife, after jumping from bed to bed with her new found paramours, chronically drunk, and when at home nagging, brawling and quarreling, all against the wishes of a faithful husband who remains at home nurturing the children, is permitted to divorce her husband who does not desire a divorce, but rather, has one forced upon him, not because of anything he has done, but because the offending wife tells the trial court that her marriage is “irretrievably broken”.
In my opinion, the offending spouse should not have standing to obtain a divorce if the innocent one invokes the doctrine that,
“He who comes into equity must come with clean hands.”
It is the duty of this Court to seek a construction of a statute which would support its constitutionality. By merely retaining the “clean hands” doctrine, I could agree that the “no-fault” divorce statute is constitutional, but absent this,
I must respectfully dissent.
(SIFC commentary: Justice Roberts was here precisely echoing the words transcribed 4 years earlier of Fred T. Hanson, the head of the NCCUSL Commission that authored UMDA, in his dissent with the majority on that uniform state law advisory commission. He is essentially saying that granting a unilateral petition to an offending spouse against the consent of a non-offending spouse denies equal protection under the law. Had these gentlemen been heeded, our nation would be in a very different place today.)
3. MVR v TMR, New York (1982) 115 Misc 2d 674
This was a fault-based case alleging mental cruelty and abandonment brought by the wife of a homosexual. New York would not adopt unilateral divorce until 2010, and at the time of the case, had not adopted the exclusion of marital misconduct as a factor in property division. The judge still interpreted the existing statute as prohibiting the consideration of marital misconduct after comparing with the practices of the other states that had adopted variations of UMDA. He stated that did so for the purpose of giving special protection to the homosexual Respondent.
There was no discussion of financial misconduct in the case, and it’s unclear why the wife Petitioner wanted marital misconduct considered in the settlement. Presumably the reason why the abandoning / offending Respondent, who did not appear to be committed to the marriage, was not the Petitioner was that there was no “irreconcilable differences” ground available to him at the time.
The ruling pontificated upon the difficulty of apportioning mutual marital fault (as if family law is the only setting where this unbearable burden is foisted on the beleaguered judiciary), and asserted the following discussion of the “economic partnership” marriage constitutes:
“As in commercial partnership law, from which this model is drawn, fault is irrelevant in the distribution of partnership assets upon dissolution of the partnership. “ The discussion goes on to claim that the “partners” are merely getting back what they contributed.
(SIFC commentary: fair enough in this limited instance where the divorce itself is not without due secular cause and not unilaterally imposed. However, this Certified Public Accountant would be remiss not to point out that nothing precludes additional civil action for financial malfeasance by commercial partners that would not be available to spouses. Therein the popular UMDA-inspired false analogy breaks down. Further, as our case demonstrates, unenforced and defeated dissipation curbs allow some “partners” to “get back” far more than they contributed to the marriage estate. )
4. Brumbaugh v Brumbaugh, Florida (1983-1987) FL5th District C.A. & U.S. Supreme Court
I was not able to download a free copy of this case, so I base my description on author Judith Brumbaugh’s compelling book, Judge, Please Don’t Strike That Gavel On My Marriage! From the beginning, Florida had one of the harshest laws in the nation because like California, it adopted the advisory Uniform Marriage and Dissolution Act (UMDA) without significant modification. Ten years after enactment, marriages were being flushed away with vending machine-like “efficiency”, and courts were thuggishly punishing anyone who dared stand in front of the steamroller. Then along came one of those annoying religious objectors, hauling her bible into court and thumping it as if it were a higher law than the Florida Statute.
Mr. Brumbaugh had brought his unilateral petition as a result of his own adultery, having once professed to being an evangelical Christian for the entire period of their 20 year marriage. Like Mrs. Walton and Mrs. Ryan, Mrs. Brumbaugh had been a homemaker for the duration of her marriage, including home-schooling her children, and was financially dependent on her husband. Her resistance to assenting to the “irreconcilable differences” grounds caused the judge not only to punish her financially, but also to ensure that she could not pay legal fees, and even to tamper with her court transcript, as she discovered during her appeals process. For the majority of her legal journey she was forced to educate and represent herself. Though she was the non-offending spouse, she was stripped of all property rights and custody of her children. Many parents’ rights advocates say this is what commonly happens as a result of contesting a divorce on moral grounds, so parents feel compelled to violate their moral convictions in order not to lose parental rights. Since SIFC is not conversant in Parents Rights issues, we refer the reader to advocate Stephen Baskerville.
Mrs. Brumbaugh asserted that she was being punished by the court for exercising her First Amendment right to free exercise of religious conscience in contesting her case, since she believed, as I do, that the bible strictly prohibits and God does not recognize divorce between covenant spouses, and that subsequent remarriage while a covenant spouse is still living constitutes adultery, as Jesus clearly stated. There was not a dissipation of assets claim involved, but parental rights and religious rights to the continuation of the children’s upbringing were very much at issue.
Had she succeeded in being heard on appeal, she may potentially have prevailed on a First Amendment free exercise-based challenge because the landmark 1990 decision, Oregon v Smith had not yet set the precedent that diluted religious protections against broadly applicable state laws like the marriage dissolution law which violated her deeply held convictions. Since that time, effective religious conscience protections have come to depend heavily on state Religious Freedom Restoration Acts which were developed at the Federal level and in several states in response to the attempted curtailment of original constitutional protections. Like standerinfamilycourt, Mrs. Brumbaugh was financially punished by a hostile judge for contesting her husband’s petition on moral and biblical grounds based on the dictates of her conscience, and according to her biblical responsibility before God for her family’s spiritual wellbeing.
This lady’s strong persistence through several years of wrangling with state courts, her desire to become educated out of a motivation to help others, and her string of losses in the state courts eventually led to her case being docketed at the U.S. Supreme Court, but ultimately it was dismissed without hearing. At the end of her 4 year legal journey, Mrs. Brumbaugh was still self-represented due to lack of funds for legal counsel.
(SIFC commentary: At that time, the various legal ministries devoted to defending religious liberties were just getting started, and though they all have mission statements that promote the defense of the traditional family, most still do not construe that mission to include defending against forced divorce cases that violate religious conscience, and several told us they do not readily accept that religious discrimination is a core issue in such cases. The reasons seem to have mostly to do with fundraising and not wanting to politically offend certain constituencies. However, as these same ministries have in 2014 been representing various states’ efforts to preserve the one man, one woman legal definition of marriage, they have been met with judicial chastisement over the apparent hypocrisy of this stance in failing to recognize the most dangerous form of marriage redefinition that actually enabled unilateral divorce. SIFC prays that these ministries will penitently hear this as the voice of the Holy Spirit, even though the words are coming from the lips and pens of liberal judges determined to deconstruct traditional marriage. SIFC believes that any victory against demonic spiritual enemies requires absolute integrity and total obedience to all of God’s word, fearing God above all men, and this could very well be a “core issue” in the lack of God’s blessing on their cases in the constitutional arena of homosexual and plural marriage redefinition.) 1M1W4L !
5. Semmler v Semmler, Illinois (1985) 107 Ill.2d 130
In another case following shortly after enactment of a provision of the unilateral divorce law, specifically, the two year separation provision which in Illinois triggers unilateral dissolution if proven. The wife asserted unconstitutionality due to retroactive application (essentially the ex post facto, Article 1 Sec. 10 argument). The trial court agreed with her and denied the divorce.
The husband appealed and the trial court decision was overturned based on earlier precedents the trial court failed to apply, including Maynard v Hill from the U.S. Supreme Court.
It is unfortunate that an issue around the constitutionality of marital misconduct being excluded as a consideration in the division of property or determining child custody wasn’t raised in this case. The appellate court did not have an opportunity to observe the double-standard in singling out the marriage contract as not being subject to constitutional protection while the Illinois statute nevertheless demands to treat the marital estate as a contractual “economic partnership”. An opportunity was missed to reverse the perverse economic incentive created by the statute (to walk out on one’s family with no economic consequences) that no doubt tugged at the conscience of that Kane County trial judge who was overruled in this appeal.
(SIFC commentary: This appears to be the only substantive challenge brought to the constitutionality of Illinois’ unilateral divorce law. Another 1978 case Kujawinski v. Kujawinski 376 N.E.2d 1382 was brought on several counts of technical issues where the trial court ruled the law unconstitutional, and was also fully overturned.)
6. Johari v Johari, Minnesota (1997) Court of Appeals, CO-97-69
The husband brought a pro-se appeal of his wife’s no-fault judgment on equal protection grounds, and asserted that where there are minor children of the marriage, “irretrievable breakdown” as a standard for dissolution of the marriage does not meet the purpose of the Preamble to the U.S. Constitution, an issue not taken up in the trial court, thus dismissed. In his role as Appellant, Mr. Johari failed to give required notice to the State Attorney General of his constitutional challenge which substantially damaged his case. Mr. Johari did not raise a religious objection to the statute.
The appeals court ruled that Mr. Johari failed to make a legal argument on appeal, and cited no legal authority in support of his argument. The court further ruled that newspaper and magazine articles he brought in support of his position were not adequate to establish error by the trial court. Finally, the court ruled that the relief Mr. Johari sought in ordering the Minnesota Legislature to reverse the unilateral divorce statute to require a findng of cause, and set aside the divorce judgment pending this action was outside the court’s authority. The trial court decision was affirmed.
(SIFC commentary: It is unfortunate that Mr. Johari was not able to be represented by trained counsel. He certainly had the right idea.
Part 2 will cover cases brought since 2000, including some very interesting religious freedom cases.
7 Times Around the Jericho Wall | Let’s Repeal No-Fault Divorce!