Category Archives: Substantive Due Process

Knickers (and Facts) in A Twist over Repeal of Texlahoma “No-Fault”

TheDunlapsby Standerinfamilycourt

It has been an exciting spring legislative session in the southwest this year, as young lawmakers in Texas and Oklahoma have introduced common-sense bills curbing non-consenting unilateral divorce, and as both bills have recently made it out of their committees fairly intact.    The liberal press has been shrieking and howling its disapproval, especially in Oklahoma, where the measure also ends the perverse economic incentives from unilateral divorce by restoring stiff marital fault penalties to property division.

As is so typical of liberal grandstanding and industry lobbying, we’re hearing not of the millions of fathers whose fundamental right to protect and raise their children is being severed though they’ve done nothing objectively wrong,  nor of the adulterers sailing off with the unconscionable award of the innocent spouse’s retirement funds after a decades-long union which is suddenly deemed “irretrievable” by the court.   Instead we are hearing about the classic “abused poor woman” who will now find it harder to get a divorce because she might now have to actually prove the abuse with (gasp) evidence thereof.    As one of the expert witnesses giving testimony in Texas accurately pointed out to committee members on March 8, lawmakers cannot legislate to the extreme case (13:00),  as the liberals would like, but must do what’s best for society as a whole.

Rep. Travis Dunlap is a young lawmaker from Bartlesville, OK who was elected to the state house from his trade as a piano tuner.    Though he does not have the constitutional law background that his Texas counterpart has, he probably drafted the more effective of the two pieces of legislation in actually rolling back the abusive “no-fault” regime.    According to media accounts,  the original HB1277 drafted by Dunlap made it impossible for a court in Oklahoma to grant a divorce for “incompatibility” (the equivalent of “irreconcilable differences”) if the couple met one of three criteria:

– married for more than 10 years, or
– had a living child under age 18, or
–  a partner involved objects to the divorce.

A committee modification allows petitioners who fall into one of those categories to have a divorce granted by the court for “incompatibility”, but they must first go through an educational program about the impact of divorce.   Previously, petitioners only had to do that if they had a child under age 18, and the educational program was focused on the impact of divorce on children.    While this does not seem a particularly helpful modification from the standpoint of constitutional protections,  this bill has a very important strength that the Texas bill lacks:  it restores marital fault to the property settlement that results, as follows,

  “However, where the court finds by a preponderance of the evidence that one spouse caused the dissolution of marriage by committing at least one of the grounds for divorce, other than incompatibility, listed in Section 101 of this title, the court shall award only one-quarter (1/4) of the marital property to that spouse and the other spouse shall retain the remaining three-quarters (3/4) of the marital property…….

“Upon granting a decree of dissolution of marriage, annulmentof a marriage, or legal separation, where the court finds by apreponderance of the evidence that one spouse caused thedissolution, annulment or separation by committing at least one of the grounds for divorce, other than incompatibility, listed in Section 101 of this title, the court shall order that party to paythe other party’s expenses, including attorney fees.”

Perverse and unjust economic incentives play such an enormous role in the abusiveness of existing family laws,  and so drives the egregious behavior of the divorce industry “professionals” who have far more interest in shredding families than defending them, that no reform is likely to be sustainable without addressing this, as the Oklahoma bill has nicely done.    As a direct consequence, Rep. Dunlap has predictably drawn the venom of the state Bar and the unrelenting scorn of Oklahoma’s leftists in the press.    The committee vote was 7-5 on February 27, to refer the bill on for a floor vote which must occur by the May 26 end of the Oklahoma 56th legislative session.   The Senate sponsor of the bill is Sen. Josh Brecheen of Coalgate, Oklahoma.   Unlike Texas, Oklahoma does not have a strong family policy council any longer,  and videos of the committee testimony do not seem to be available.      One recent article says this, “Dunlap, who represents District 10, said he now does not expect the bill to see a vote in the House but is interested in continuing his efforts. ”     We hope and pray that Rep. Dunlap  does just that.

Rep. Matt Krause’s Texas bill was the subject of an earlier blog post.   That bill, which simply eliminates no-fault grounds where there is not a mutual-consent petition has been favorably referred by a 4-3 committee vote on April 12, and must somehow achieve a floor vote by the May 29 end of the legislative session.     This bill does not address several onerous provisions that would remain unchanged in the Texas Statute which could effectively still result in a contested dissolution being granted to an offending spouse over the moral objections of the non-offending spouse, including this provision:

Sec. 6.006. LIVING APART. The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.

Often, the innocent original spouse who does not believe in marriage dissolution because of scriptures such as Matthew 19:6 and 8, Romans 7:2-3 and 1 Cor. 7:10-11 and 39,  has non-cohabitation forced on them by the offending spouse, and has little or no control over this circumstance, especially if the offending spouse is in an adulterous relationship or has a history of physical abuse of household members.    This should therefore not be left under the sole control of the offending party if unilateral divorce is to be eradicated, and constitutional protections balanced.    We should also  note that the [unchanged] “cruelty” ground  contains this phrase which still refers to “insupportability” but does not objectively or measurably define “cruel treatment” :

The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable 

(Apparently, rogue  attorneys and “abused poor women” can restore “insupportability” simply by alleging cruel treatment under sec. 6.005, which this bill still does not, for all purposes, make them actually prove under its ongoing vague definition — how novel!)

In the unlikely event that Texas HB93  achieves a floor vote by the end of the session, there’s no question that there will be some back doors left wide open to unilateral divorce, but the period of time required will be lengthened.    If it dies  in the 85th session  without being voted on, we hope it will be re-introduced next session with some of these issues further addressed.

We covered a list of practical actions Texas and Oklahoma citizens can take to support these bills in the last blog on this topic, but let’s run through a few briefly again:

(1) Call the state capitol and ask for a floor vote:
Joe Straus
Speaker of the House (Texas)
(512) 463-1000
(512) 463-0675 Fax

Charles McCall
Speaker of the House (Oklahoma)
(405) 557-7412

(2) Engage your church and pastor – ask for a few minutes to talk to the congregation about the religious freedom and due process issues with the so-called “no-fault” system and how it has led to every other kind of  immorality, from same-sex attraction to the high abortion and suicide rates.    Explain that citizen engagement is needed at the grass roots to counter the overwhelming divorce industry lobby and liberal press.   If they sent busloads of the faithful to the state capitol 2 or 3 years ago to combat gay “marriage”,  challenge them on why this isn’t every bit as weighty a matter to the church’s families.

(3) Call Texas Values and ask what they are doing to support HB93. (Unfortunately, we’re not aware of a functioning family policy council in Oklahoma at this time).

(4) Sign a petition if you get a chance.   The Ruth Institute has one for Texas that can be found here.

(5) No matter which state you call home, please take time to call and write to encourage Reps. Krause and Dunlap.     Pray for them, and let them know it.

NeverGiveUp

Divorce Reform, Repenting Prodigals and Covenant Marriage “Standers”
While there is broad agreement in the marriage permanence community that repealing unilateral divorce is best for the future of our nation, many of us have either already been unjustly divorced and seen our spouse remarry adulterously  (by biblical standards, that is – since we, their true spouse in God’s eyes, are still alive), or others of us have come to biblical conviction that we had wrongfully “married” someone else’s divorced spouse, and needed to exit that union to be right with God.    So, though meaningful reform of the unilateral family-shredding machine remains a long shot with plenty of deep-pocketed, well-connected opposition,  we should look at where such reforms leave our wandering spouses who need to exit those immoral, civil-only  unions and rebuild their covenant families.    The subsequent divorce rate is significantly higher for legalized adultery resulting from the divorce culture, and it escalates with each round of serial polygamy under easy divorce laws.    Just how hard will divorce reform make repentance from remarriage adultery under the two bills being considered ?    Here’s an analysis for each:

Oklahoma, under HB1277:   Mutual-consent petitions continue to permit no-fault grounds, but if the adulterous union produced a minor child or has lasted at least 10 years, an education class must be attended before dissolution can be granted.     It is likely that a repenting prodigal exiting the adulterous remarriage will leave 75% of the marital assets with their ex-spouse unless that spouse has committed a serious, provable offense against the marriage.     Assets can be replaced, but souls certainly cannot.    Even so, assets brought in from the “dissolved” covenant marriage (very importantly including retirement accounts) are not considered part of the marital assets of the subsequent faux marriage and would not be forfeited by decree, however the repenting spouse would also likely have to absorb all the legal costs of getting free of their legalized adultery.     Waiting period:  180 days.

Texas, under HB93:  Mutual-consent petitions permit insupportability grounds but if the subsequent spouse does not consent and the repenting prodigal separates in order to end the practice of adultery (as he / she must do regardless), then after one year the now-abandoned spouse may file a fault-based petition which will be granted upon evidence, or they may agree to a mutual-consent petition sooner, and if HB65 also passes, the waiting period will be 180 days.   Alternatively, the if the repenting spouse moves back in with their covenant spouse,  grounds of adultery are then available to the now-abandoned subsequent spouse.  If the non-covenant still declines to file a grounds-based petition, the repenting prodigal may file after 3 years of continuous separation on the basis of non-cohabitation.    Assets would be divided on the same basis as current law but this  would not include any assets brought from the prior covenant marriage.

“Standerinfamilycourt” always encourages mutual petitions rather than dragging anyone into a pagan court (1 Cor. 6:1-8)  in the process of repenting of an adulterous remarriage, as a growing number are doing these days upon learning the biblical truth on the matter.     If prayer doesn’t produce a consenting, mutual petition, repenting prodigals can always take comfort in the biblical fact that no state has dissolved the marriage of their youth in God’s eyes, nor was the subsequent “remarriage” ever considered valid in His courtroom.    They are free to resume their union without the state’s blessing and are not actually in sin if they do so.   The Lord will then sort out the legal matters in His own way.

‘So they are no longer two, but one flesh. What therefore God has joined together, let no man separate’….He said to them, “Because of your hardness of heart Moses permitted you to divorce your wives; but from the beginning it has not been this way.     Matt. 19:6, 8

And Jesus said to them, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”   Matt. 12:17

(SIFC:  Would like to give a shout-out and thanks to Bai MacFarlane of Mary’s Advocates, who has established contact with Rep. Krause’s office and has provided some of the not-yet-posted details needed to complete this post.)

www.standerinfamilycourt.com

7 Times Around the Jericho Wall  |  Let’s Repeal Unilateral Divorce! 

 

 

 

 

 

 

 

 

 

 

Will They Do It? Another State Attempts to Repeal Unilateral Divorce

KrauseFamilyby Standerinfamilycourt

It appears that the first major effort since 2006 by a state legislator to roll back so-called “no fault” (unilateral divorce) has been underway since the last session of Texas legislature, sponsored by Rep. Matt Krause, recently re-elected to a third term.

Rep Krause is the son of a Baptist pastor who attended Liberty University School of Law and is a constitutional attorney who opened up a branch of the Christian legal defense firm Liberty Counsel in Fort Worth, TX.  The  Krauses have four young children and are in their mid-thirties.

From a December 28 post by a local news service:

A one-page bill, filed by Rep. Matt Krause, R-Fort Worth, will make it harder for couples to separate, by ending [the “ground” of]  “insupportability”

FB profile 7xtjw SIFC: (“insupportability” is functionally equivalent to the civil charge of  “irreconcilable differences” in most other states.  Liberal bias in the press coverage often deceitfully implies mutuality in the assessment, by paraphrasing in terms like  “the couple can no longer stand” to live with each other.)

Per the Texas Statute, as currently enacted:

Sec. 6.001.  INSUPPORTABILITY.  On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.   Enacted, 1997

At some point between the original 1970 enactment of unilateral divorce in Texas and 1997, there was a re-write of the statute which Judy Parejko described in her 2001 book, “Stolen Vows”,  where the provision for mutuality in the petition was surrepetitiously  taken out of the enacted language.    From Day 1, the members of the Texas Bar refused to implement the law on that enacted basis, until they finally succeeded in changing it, just prior to the time that attorney Ed Truncellito brought his failed constitutional challenge of the false language in a 2000 case.    FB profile 7xtjw

The local article continues:

Krause says ending no-fault divorces would keep the family together as well as add protection to the spouse who might not want to split up.

“There needs to be some type of due process. There needs to be some kind of mechanism to where that other spouse has a defense,” said Rep. Krause, who filed the same bill last session.   He hopes lawmakers will pick up the issue earlier in the 2017 Legislative session.

He also filed a bill to extend the waiting period for a divorce from 60 days to 180 days.

MKrauseFB_post

What would a successful effort by Rep. Krause mean to the community of covenant marriage standers, also to repenting prodigals, in the highly unlikely event that this attempt to repeal “no-fault” (unilateral, non-consenting) divorce succeeds in Texas?  As is all too typical in the liberal press, this local article was written in such a way as to misinform the public on both sides of the issue.
Success is actually highly unlikely, especially without ardent support from the churches of Texas, who are more likely to ignore the bill, or give it only tepid support.   We attempted to contact Rep. Krause through his Facebook page, to ask him if he at least had the support of his state family policy council, but he did not respond:

We would like to follow the progress of your bill, Rep. Krause. What is the bill #, if we may ask ?

Another question: are you familiar with what author Judy Parejko wrote in her 2001 book, “Stolen Vows” about the original statute language in Texas,and the contrary way it was implemented?

Are there any Family Policy groups supporting you at all?

Thanks, and Godspeed! 
“standerinfamilycourt”

We must nevertheless keep praying for the coast-to-coast repeal of unilateral divorce.    The bill before the Texas legislature, introduced by Rep. Krause is HB93, whose progress can be followed here.    It is telling that its sponsor would like this bill to come up for a vote “earlier in the 2017 session.”    That’s because he had to re-introduce it, since it failed to be brought to a vote in the prior session.

 

TX HB93_2017

Texas does indeed have a family policy council:

Texas
Texas Values
Jonathan Saenz, President
900 Congress, Ste. 220
Austin, TX 78701
Phone: 512-478-2220
info@txvalues.org
txvalues.org

The 85th Texas Legislature is dominated by Republicans in both the House and the Senate, so grass-roots citizen efforts to support this bill would appear to be fairly effective, notwithstanding the stiff, well-financed opposition that is likely to come from the Texas Bar Association and the ABA.    We would strongly encourage our page followers living in Texas to take several practical steps to give this bill a chance for enactment:

–  go to your pastor and make sure he is aware of this bill.   It seems to be getting some publicity, but mostly biased and unfair publicity.   Ask him to contact Texas Values and state legislators in support of it.   Make sure your pastor understands the connection between unilateral divorce and gay marriage / threats to religious liberty, and that “Respondents” to a unilateral divorce petition were the very first Christians to lose their religious liberty on the altars of the Sexual Revolution.

contact Texas Values yourself, and ask them to support the bill with publicity spend and legislator contacts.  To their extreme credit, their page does call out unilateral divorce as an issue.    To their discredit, a perusal of their page shows that they’ve not done a blog piece on the bill from the time it was filed in November, 2016 to-date.   (You may also need to point out the religious liberty issue to them, and remind them of what was documented in the early constitutional challenge cases by actual Texas judges in the 1970’s.

– do the obvious and keep pressure on your state legislators to support the bill.   The other side will most certainly be doing so.

re-share this post, and ecourage everyone you know to do the same.

maintain supportive contact with Rep. Krause through the link to his page that we provided above.   Pray for him, and let him know it.

For now, we just make a few practical point-outs:

(1) If this succeeds, it’s a necessary matter for full repentence as a nation (and more importantly as a CHURCH) to help stay God’s hand of judgment on this nation at its true root.

(2) The last state to make this sort of attempt was Michigan in 2006. Despite the lonely backing of the Family Research Council, the effort was defeated by heavy, well-funded opposition from the Michigan Bar who argued that people would simply cross state lines to get their “blameless” divorce, saddling the state later on with administering it. (Ironically, most of the fee revenue to attorneys comes for years after the divorce if there are children involved — so this argument, while true in its first point was spurious and dishonest in its totality – just like this article.)

(3) Make no mistake, unless there is an option preserved for MUTUALLY ending a civil-only marriage by agreed peitition with agreed terms (only), this will make it infinitely more costly to repent of an adulterous or sodomus union entered into with someone else’s spouse. Imagine going into family court with a formal charge of adultery saying “I’m the adulterer, and she is as well, because only death dissolves her original covenant marriage, not the State of Texas, Your Honor.” (No 20th-21st century judge has ever cared that the bible makes it clear that remarriage is an ongoing state of adultery, as Jesus repeated in the same words at least 3 recorded times, and that dying in this state is a matter of heaven-or-hell, as Paul stated at least twice.)   There was a time when our judges did know this, and when they ruled accordingly.

(4) Repenting prodigals under Texas jurisdiction will need to be prepared to live apart from their noncovenant, counterfeit mate immediately, and for 3 years thereafter if the forced unilateral clause is removed without replacing it with a true mutual “no fault” petition — which (contrary to the bias of the local article), NO state has ever had.
(**Except for Texas, as noted above, but only on the statute books, not in practice or interpretation).
Hopefully, repenting prodigals will realize that man’s law is inferior to God’s law and that the latter is all that is required to live morally and righteously with their true, God-joined spouse. — Expect legal hiccups for the covenant family and fiery censure from the apostate church in the meantime! Here’s where the voice of true Christ-followers in the marriage permanence community is going to need to be more grounded and resolute than ever.

(5) No state is likely to gain any traction on this issue until the neighboring states do. And that’s unlikely until the church stops performing adulterous weddings or signing civil marriage licenses, thereby boycotting the culture of serial polygamy and all of its entrenched instruments including state “jurisdiction”.

Currently, fault-based divorces in Texas must fall into one of six categories: adultery, cruelty, abandonment and a felony conviction, living apart for at least three years or confinement to a mental hospital.    Rep. Krause was also quoted on January 8 by Maria Anglin of the San Antonio Express-News as saying he’d like for the three years to be reduced to one year if the petition alleges abandonment – in our opinion, not an improvement since most experts say that the average length of an extramarital infatuation is two years.   Texas is one of the few major states that still offers fault-based divorce, with Illinois repealing all fault-based grounds in 2015 in a profoundly immoral overhaul of its “family laws”.

We will do our best to establish contact with Rep. Krause and with Texas Values, so that we can keep you informed of progress.

www.standerinfamilycourt.com

7 Times Around the Jericho Wall  |   Let’s Repeal No-Fault Divorce!

Legal Glossary for Disenfranchised “Respondents” Fighting for their Marriage & Family

 

 

constitution-burningReagan

Prayer for Rescue from Enemies.   A Psalm of David.

Contend, O Lord, with those who contend with me;
Fight against those who fight against me.
Take hold of buckler and shield

And rise up for my help.

Psalm 35:1-2  New American Standard Bible (NASB)

Respondent Memeby Standerinfamilycourt

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.   (Wherever a legal term with significant meaning and constitutional  implication has been used in general discussion, it is bolded and italicized.  On the other hand, wherever gratuitous terms from the statute are used that are vaguely defined, and are accepted as true by assertion and inference only – example: “irretrievable breakdown”,  they are left in normal font. )

ABSTRACT:

Two elements render unilateral divorce laws unconstitutional in all or most states:

(1)  availability of “irreconcilable differences” as grounds for dissolution of marriage  in contested cases

(2) the exclusion of marital fault as a factor in determining disputed property and child welfare matters

These elements violate several constitutionally-protected fundamental rights owed to non-offending Respondents in a divorce case, and do so without a compelling government interest.


Innocent spouses who have found themselves on the receiving end of an offending spouse’s unilateral divorce petition are treated civilly by the court only so long as they don’t contest the “irreconcilable differences” allegation, and don’t mind splitting the marital estate 50/50 regardless of serious fault or financial abuse .  Sometimes Respondents can work out something more favorable than 50/50 with a fair-minded spouse.   Often, however, due to the Petitioner’s spite, which is enabled by  the resulting unbalanced legal preference afforded when marital fault is excluded by statute from being considered in property settlement,  or by unscrupulous influence from the opposing attorney,  or by depleted assets due to the offending spouse’s gross financial abuse,  and/or  biased early rulings by the judge,  a compensatory split is not possible and a trial ensues to preserve constitutional protections.   (In this Respondent/”stander’s” case, it was all of the above circumstances.)

If you are a religious or moral objector to divorce, or there has been significant financial abuse that the court wrongfully declined to consider,  a constitutional appeal may be appropriate.    Forty-plus years of such cases challenging the constitutionality of the state laws have failed in appeals because the aggrieved spouse and their attorneys may not have realized what is required for the courts to actually give a Respondent’s constitutional rights sufficient consideration to outweigh the legislative objectives of the enacted laws.    Case law defining these terms in a way that could be beneficial to non-offending divorce Respondents, as a class, has only emerged fairly recently, particularly in cases involving marriage rights.   (See Part 1 and Part 2 of our Constitutional Case History.)

 

What follows below are some legal definitions and case citations that may be useful to a Respondent in seeking constitutional relief against the sort of judicial favoritism overwhelmingly shown to Petitioners under the prevailing system.    These definitions may help in persuading a judge to go beyond applying a “rational basis” standard of review to the appeal.    If this can be accomplished, the civil authority must then bring evidence that the results of the law match the intent of the law, and that there was not a more effective and less constitutionally-invasive alternative of accomplishing the objectives of the law.

It is very difficult to get consideration as a disfavored class outside of religious or race/gender/nationality protections, but once this is achieved, it becomes pretty difficult for the state to meet the more discerning and demanding tests that result.   Someday, sooner or later,  this overlooked issue will topple a state’s unconscionable unilateral divorce laws.    High courts normally require “narrow tailoring” of a law to meet its stated objective, but various features of existing “no-fault” laws generally paint a very broad brush stroke, with widespread disparate impact, in order to favor a small ideological minority such as homosexuals or battered spouses  at the expense of everyone else, including taxpayers and society at large.

 

Respondent – the term given to a defendant in a civil divorce case as a result of the unilateral divorce laws.    Respondents seem to need a special name to denote for the legal community the singling out versus ordinary defendants because they have fewer constitutional protections than any other class of civil or criminal defendant.  This is in order to give intentional legal preference to the Petitioner in the event the litigation is contested.

 

Standard of Review – a defined process courts must follow to determine whether there is sufficient justification to impair the 14th Amendment constitutional protections of an individual adversely impacted by a law that favors one group over another

Strict Scrutiny –  the most favorable standard of review to Respondents as a class, or as individuals who have been denied their fundamental rights (religious expression, parental sovereignty, family privacy, defense against a civil charge, defense of property).    For a law to pass the test as constitutional under this level of review, the civil authority must prove that the law serves a “compelling” purpose, and that the means chosen to accomplish that purpose is the “least restrictive” alternative available.   This more exacting standard of review must be applied where a Respondent demonstrates that a clearly-defined fundamental right has been impaired or denied, or that their free exercise of religion has been substantially burdened.   (See also “RFRA” below).

Heightened Scrutiny –  standard of review that is analogous to Strict Scrutiny.

Korematsu v United States (1944) U.S. Supreme Court         (heinously, the compelling interest test was deemed to be met which allowed the internment of Japanese Americans during WWII)

Burwell v Hobby Lobby (2014) U.S. Supreme Court                                Korte v Sebelius (2013)  U.S. 7th Circuit

 

“Suspect Class” & “Quasi-Suspect Class”–  an aggrieved class of citizens who are deemed by the court to be entitled to the protection of a heightened standard of judicial review due to one or more of several factors:

To prevail here, it needs to be shown that Respondents can be identified as a minority class that shares much of the following experience….

(1) longstanding pattern of animus or systemic discrimination,          (2) politically weak and legislatively / societally disfavored,                  (3) some disfavored immutable characteristic or other characteristic not within their control:  race, gender, nationality, deeply-held conviction about the indissoluability of marriage, etc.                                     (4) the characteristic bears no relation to their ability to perform or contribute to society.

Judge T S Black_quote

Where a quasi-suspect classification is established, intermediate scrutiny applies.  Here the burden shifts to the state to prove that the law serves an “important” governmental objective that could not be met without the means chosen, and that there’s a close fit between the outcome of the law and its claimed objective.   We all know by now that unilateral divorce laws cannot stand up against that kind of scrutiny due to the range of well-documented perverse outcomes, and due to the varying ways these laws have been enacted in different states, especially in that not all states apply marital fault to child custody and property division yet still enforce no-fault grounds.

Kerrigan v Public Health Commission, CT Supreme Court, (2008), pages 5-40 of embedded link, which in turn cites several Federal cases.

  Varnum v Brian,  IA Supreme Court (2009)

 

Intermediate Scrutiny  –  standard of review that is moderately protective of the constitutional rights of Respondents where the burden of proof is also with the civil authority which must prove the law serves an “important” interest which could not be achieved in the absence of that particular law, and the law actually has a close enough fit with its objective such that it actually achieves that interest or result.    Presumably, a Respondent can bring refuting evidence around the last two points, since years of evidence have stacked up in every state that unilateral divorce works against the stated purposes in the statute, and have produced the exact opposite of the objectives espoused in the legislative history, along with disastrous unintended consequences.   For this standard of review to apply,  however, there has to be evidence that the contesting Respondent is a member of a “Suspect Class” or “Quasi-Suspect Class”.

Craig v Boren (1976)  U.S. Supreme Court

FB profile 7xtjw(SIFC commentary:  if Respondents were to be treated as a quasi-suspect class, or if any of the above levels of review were applied, it would be difficult for the civil authority to obtain a finding that unilaterally-asserted and unsubstantiated “irreconcilable differences”  grounds accusations constitutionally withstand 14th Amendment equal protection and substantive due process tests.   However, all rulings to-date on constitutional challenges to divorce laws have applied rational basis as the level of review, mostly due to insufficiently developed case law and unjust failure to recognize contesting Respondents as a “Quasi-Suspect Class” or as having protected fundamental rights, as individuals or as a class.)

 

Rational Basis –  the level of review most beneficial to the civil authority seeking to defend a law and enforce it against an injured party who brings a constitutional challenge.    To gain priority over a Respondent’s equal protection and due process rights, a civil authority must establish only that the law serves a “legitimate” purpose, and the means is reasonably / rationally connected with furthering that purpose.    The burden in this situation is on the Respondent to prove otherwise.    Unjustifiably, this has been the review standard applied at the state level to all past constitutional challenges of unilateral divorce laws,  occasionally in 2-1 split appeals panel decisions concerning the level of scrutiny that should be applied.

United States v Carolene Products Company (1938)  U.S. Supreme Ct

 

Legitimate Purpose –   There have been a bevy of recent homosexual marriage redefinition cases that struck down voter-approved constitutional amendments defining marriage by finding that such laws had no rational relationship to meeting a legitimate state interest.     Yet, according to legal scholars,  Kathleen M. Sullivan and Gerald Gunther,   under this standard of review, the “legitimate interest” does not have to be the government’s actual interest.  Rather, if the court can merely hypothesize a “legitimate” interest served by the challenged action, it will withstand the rational basis review.     These volatile extremes in potential judicial outcomes show that the concept of “legitimate purpose” appears to have degenerated from its original aim of protecting separation of powers, to an area ripe for judicial anarchy, as ideological politics increasingly infect the bench.     However,  it is clear from a preponderance of  recent rulings that state legitimate purposes still cannot deprive a class of citizens of their fundamental  rights.   In other words, state legislatures can’t override fundamental rights,  and they are not subject to the will of the majority without a compelling state interest at stake, provided the states’ high courts are doing their job without class bias .

Bostic v Schaefer, 4th U.S. Circuit (2014)                                                                   Kitchen v Herbert, 10th U.S. Circuit (2014)

 

Important Purpose –   this level of review requires that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.    As  contrasted with “legitimate” purpose, the burden shifts to the state, and there must be shown a reasonable fit between the law and its objective.   Presumably, this still cannot deprive a politically disfavored group of their fundamental rights.      As contrasted  with  “compelling” interest,  there’s no requirement for least restrictive means.

 

Compelling Interest –   historically defined as something necessary or crucial, as opposed to something merely preferred by the prevailing state ideology.    Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.    However, the recent religious free exercise case,  Korte v Sebelius   (7th US Circuit) added a lot of flavor,  which was fortunate because the U.S. Supreme Court chose not to go there  in  the  companion  case,  Burwell v  Hobby  Lobby.      According to Korte, the 7th Circuit stated, “the compelling interest test generally requires a high degree of necessity.   The government must identify an actual problem in need of solving, and the curtailment [of the fundamental right] must be actually necessary to the solution.   In the free exercise context, only those interests of the highest order and those not otherwise served can overbalance the legitimate claims to the free exercise of religion… some substantial threat to public safety, peace or order.   Finally, a law connot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest.”

Brown v Entertainment Merchants Assoc.  (2011)   U.S. Supreme Ct     Church of the Lukumi Babalu Aye v City of Hialeah (1993)  U.S. Supreme Ct

What has unilateral divorce done to the actual instances of perjury in family court?    What have been the documented child welfare results?    What impact has unilateral divorce had on the poverty rates in single parent households?    What has it done to the demand for deviant forms of marriage requiring further redefinition?    What has it done to the actual demand for heterosexual marriage?   What has it actually done to all of those lofty elements in the preambles that incongruously “grace” most all state marriage destruction statutes (i.e. public health and morality, parental cooperation, etc.) ?    Could a more powerful case be made after 45 years of documented experience that the compelling government interest actually lies in the opposite direction of unilateral divorce,  and that stripping literally millions of citizens of their fundamental rights to carry out this failed social experiment was totally unwarranted?

 

Fundamental Rights –  Those rights enumerated in the US Constitution are recognized as “fundamental” by the US Supreme Court.    According to the Supreme Court, enumerated rights that are incorporated are so fundamental that any law restricting such a right must both serve a compelling state purpose and be narrowly-tailored to that compelling purpose.   The test usually articulated for determining fundamentality under the Due Process Clause is that the putative right must be “implicit in the concept of ordered liberty” or  “deeply rooted in this Nation’s history and tradition”.

For  Respondents opposed to unprovoked government intrusion into  the sovereignty of their covenant marriage and family, including irreparable harm to subsequent generations,  several fundamental rights are ignored by state law in order to guarantee the nonconsensual availability  to the Petitioner of  “irreconcilable differences” as grounds  for unilateral marriage dissolution without economic consequence, and because of the statutory exclusion of marital  fault in  determining  child welfare and property  division, which include:

  • The fundamental rights of liberty  and freedom  of  association,  of non-offending spouses  with their  children,  as well as the right of association  with  beloved members of  the  extended marital  family, often after decades of perfectly healthy marriage.

In some cases, restraining orders are obtained against non-offending Respondents where no warranting circumstances exist,  for example.

FB profile 7xtjw(SIFC was slandered and accused in  court by opposing counsel, then excoriated by the trial judge as a “stalker” for attending a post-petition family reunion with her husband’s permission and his  accompaniment, as testified to by two other accompanying witnesses!)

 

  • The fundamental right to freedom of religious expression and conscience in opposing the divorce action, in particular, declining on biblical authority to agree that a marriage joined by God is ever “irretrievably broken” since such an assertion is contrary to His Word,  also in the right to make financial decisions in the face of a prodigal spouse’s misconduct based on a biblical model of family role accountability instead of one imposed by the courts as their case law prerequisite to preserving property rights.   Finally, religious exercise in unilateral divorce is abridged  in a Respondent parent’s right to make decisions about the direction of their children’s education and other best interests, as opposed to what the court deems so.     Expressing biblical truth from the witness stand can result in personal credibility being slandered by the judge without any substantiation ,  for example, even when massive perjury has permeated the courtroom from the Petitioners side.

Burwell v Hobby Lobby (2014)   the U.S. Supreme Court upheld religiously-motivated choices and behaviors, as well as declining to engage in certain behaviors,  as constitutionally-protected religious expression  and right of conscience under the  Free Exercise Clause of the 1st Amendment .

 

  • The fundamental right to bring an equal and effective defense against a civil charge –  the statute of our state still pays a little bit of “lip service” to what four or five elements constitute a finding of “irreconcilable differences”.   The statute implies that both parties have an equal right to bring evidence to support or refute those elements.    SIFC’s Christian attorney made a valiant and compelling effort to do so, and at the same time appeared markedly reserved in seeking to do so.    However, the judge has the sole latitude to determine who may be allowed to do so.   Unfortunately, since allowing such evidence is deemed “prejudicial” to granting the divorce, Respondents are increasingly overruled in bringing such evidence, even denied the right to refute perjurous testimony by the Petitioner.    A unilateral divorce petition is a lawsuit guaranteed in all 50 states to remove liberty, status, privacy, property and parental rights from the Respondent, with or without just cause.    The statutory semantics of terming a civil charge as “grounds”  instead of an “allegation” to curtail the right of defense,  and denying a jury trial is unique to family court and affords Respondents fewer protections than any other type of criminal or civil defendant.

 

  •  The right to marriage (and by recent corollary, the right to remain civilly married after moving to another state) have consistently been ruled fundamental rights.    Absent proof of serious harm done by the Respondent to the Petitioner or to the marriage, state government violates this fundamental right guaranteed to non-offending Respondents  by the 14th Amendment when state courts allow Petitioners to unilaterally dissolve a marriage against the will and moral convictions of their non-offending spouse.    Inasmuch as Jesus said, “he who divorces his wife forces her to commit adultery”…and “he who marries a divorced woman commits adultery”,  many religious objectors who are stripped of their marital status for no cause by a court are effectively stripped of their fundamental right to remarry except to their covenant spouse.

Loving v Virginia  (1967)  U.S. Supreme  Ct

Obergefell v Kasich (2014)    US District Ct, Ohio

JudgeSutton2

Barrier v Vasterling (2014)  Jackson  County Circuit Court, MO

Judge J Dale Youngs MO Circ

 

 

  • The fundamental right to marital privacy and protection from unwarranted intrusion by government into the home –  state legislation of a generation ago impeding the distribution of contraceptives and information by parties outside the marriage was deemed an intrusion into marital privacy, yet state legislation forcing the unilateral on-demand breakup of the family for no spousal cause and with no economic consequences, beginning just 4 years later, somehow escaped the same scrutiny as reflected in this lofty and very true sentiment which was brushed aside by liberal state courts in the fostering of unilateral divorce, and apparently only got dusted off in 2003-2014 for the benefit of further redefining marriage into its current genderless form:

We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system.   Marriage is coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred.    It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”

Griswold v Connecticut  (1965)   U.S. Supreme Ct

Is it not true, that the nonconsensual / unilateral availability of “irreconcilable differences” as grounds for dissolving a civil marriage  creates a violation of the marital privacy right of the non-offending, non-consenting spouse?   Is it not true that it does so without a compelling state interest in a way that is not narrowly tailored?   After all, neither the 14th nor the 9th Amendments grant fundamental rights to marriages, they grant them to individual citizens.     Furthermore, access to unilateral divorce without mutual consent appears to undercut the fundamental right of one spouse to seek appropriate therapeutic care for the other spouse where severe emotional illness may actually be the root cause of the perceived “irreconcilable differences”.      The U.S.  7th Circuit found in Drollinger v Milligan that the right to care for family members is also a fundamental right.

 

  • The fundamental right of parental authority and determination of children’s education and welfare

Pierce v Society of Sisters  (1925)  U.S. Supreme Ct

“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder….It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.”

Reno v Flores (1993)  U.S. Supreme Ct

“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specifically protected by the Due Process Clause includes the rights….to direct the education and upbringing of one’s children.”

 

Troxel v. Granville  (2000)  U.S. Supreme Ct

[Justice Thomas, concurring opinion;]  “The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a fundamental parental right, but curiously none of them articulates the appropriate standard of review.   I would apply strict scrutiny to the infringements of fundamental rights.”

 

Stanley v Illinois  (1972)   U.S. Supreme Ct

“The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring).

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska, 262 U.S. 390, 399 (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and “[r]ights far more precious . . . than property rights,”

 

Drollinger v Milligan  (1977)     US 7th Circuit

The interest in the custody and care of a child by his family which has been granted paramount importance within our constitutional framework, is rooted in the right of privacy and involves the freedom to make certain kinds of important decisions involving a broad range of marital, sexual and familial relationships.”

 

 

  • The fundamental right to protection of property from government confiscation / redistribution without due compensation

W. Virginia State Board of Educ. v Barnette  (1943)  U.S. Supreme Ct

In the Supreme Court’s discussion of fundamental rights in Barnette,  they state: ” The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.   One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be put to a vote; they depend on the outcome of no elections.”

State divorce legislation that imposes divorce unilaterally at the request of an offending spouse, then excludes all consideration of marital fault in distributing property, violates the fundamental right to retain and defend one’s property, especially retirement assets of the non-offending spouse who is morally opposed to the divorce.    Since several states still grant unilateral divorce without finding it necessary to exclude marital fault for this purpose,  even the rational basis for doing so appears highly questionable.

Additionally, the practice creates a sharp contradiction in the law.   The 1888 Supreme Court case, Maynard v Hill was a particularly bad decision that singled out the marriage contract as beyond the protections of Article 1, Section 10 of the U.S. Constitution from ex post facto state legislative acts that would impair the contract.    Then, some 80 years later, this heinous legislation took the conflicting position that marital fault should not be considered as a factor in dividing marital property because marriage was deemed to be “an economic partnership”.    Partnerships are in fact economic contracts, that are normally subject to a host of protections from financial malfeasance if the partners are not spouses that the marriage contract does not enjoy.

 

RFRA (Religious Freedom Restoration Act) –  a law sometimes passed in a state following the 1990 U.S. Supreme Court decision that restricted the application of the 1st Amendment Free Exercise clause on a individual’s rights if a law is one of “general application”.    Language (and effectiveness) varies by state, but generally such laws require strict scrutiny once the Respondent has shown that their free exercise of religion has been burdened by application of the law to them, and it usually provides that this constitutional protection applies to laws of general application.   There is also a Federal RFRA, but this cannot be applied to divorce cases where the state has not enacted a similar law.    Many states have only recently enacted these laws after the original dozen or so states who did so in the 1990’s.    Application of RFRA to a case provides only narrow relief that is limited to the specific individual seeking it, not any class.

FB profile 7xtjw SIFC commentary:  RFRA’s  can give important relief to Respondents who are religious objectors to divorce, especially where the trial court judgment was punitive and taken in reprisal for contesting the grounds or pressing a large (albeit lawful) dissipation claim that spans several years of concealed financial abuse, perhaps in pursuit of an affair.  [Ideologically, allowing compensatory dissipation claims to be honored weakens the portion of the law that bars any consequences for marital misconduct].   It is not uncommon for some judges to make a political example of otherwise-innocent contesting Respondents through disallowance of or barring due process around dissipation claims.    In SIFC’s case this was done by requiring her to agree with the court that the marriage was “irretrievably broken”, which was against her long held biblical convictions.   

 

Animus –   State laws which have been shown to target a disfavored class and deprive them of equal protection in order to give legal preference to an opposing class have been subjected to heightened scrutiny under the 14th Amendment.   There is no question that unilateral divorce laws were enacted with the express intent of removing the protections historically afforded to defendants in divorce and downplaying both the role of willful acts against the marriage by the offending Petitioner,  and the objective interests of their minor or  emancipated children.    Today, in courtrooms across the country,  those who seek to preserve the integrity of  their families are labeled “stalkers”, “religious fundamentalists”, “mal-adjusted” and worse!    Recent legislative bills in Illinois seeking to remove even more protections from Respondents are replete with similarly-disparaging references for anyone who stands in moral opposition to unfettered sexual autonomy.    This could be unrecognized  “class legislation” similar to that repudiated by Justice Kennedy in Romer v Evans:

“A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.  “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’

As stated in Bishop v Smith:  evidence of animus requires  “some structural aberration in the law at issue, like the imposition of wide-ranging and novel deprivations upon the disfavored group or deviation from the historical  territory of the sovereign simply to eliminate privileges that the disfavored group might otherwise enjoy.”

Romer v Evans  (1996)  U.S. Supreme Ct

Bishop v Smith  (2014)  U.S. 10th Circuit

 

Procedural Due Process –  constitutional principle related to the 14th Amendment that aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial, that both parties are accorded the right to sufficient notice, an impartial arbiter,  the right to give testimony and  bring relevant evidence, enforcing equal compliance with discovery process, etc.    Family law courts frequently violate procedural due process in a contested unilateral divorce case by giving permissive treatment in many of these areas to the Petitioner while holding the Respondent to an exacting standard.

 

Substantive Due Process –  constitutional principle related to the 14th Amendment that aims to protect individuals against majoritarian policy enactments that exceed the limits of government authority by infringing on fundamental rights without a compelling state interest and narrow tailoring (close fit with state objective and least restrictive means) to achieve that interest.    Invoking substantive due process is intended to prevent singling out a disfavored group and removing their rights to life, liberty, property, marriage, marital privacy, parental authority or religious expression in order to shift the power to an opposing group or its economic beneficiaries.    In the case of unilateral divorce and family law courts, those economic beneficiaries also tend to be the very gatekeepers of justice in a severe conflict of interest!

It is vitally important to recognize that typical contested unilateral divorce proceedings will often violate both types of constitutionally-protected due process in the same case, but the tendency in the legal community is to focus on procedural due process and say the judge erred, rather than that his acts were intentional, pre-emptive or punitive.  

 

Disparate impact –   unintentional impact on a protected, disadvantaged group from enforcement of state laws.     Studies available by 2010 of the economic impact of unilateral divorce on low-income minority families, especially those headed by single mothers, caused the New York State Chapter of the National Organization for Women to actively oppose enactment of that state’s unilateral divorce laws, though broadly supported by other feminist groups in the state.   Additionally, inner city pastors are among the few clergy who will officially and publicly speak out against unilateral divorce for this same reason.     Though not a protected class, the next group to be hit by disparate impact is Respondents over age 50  in “gray divorce”, nearing retirement after 30-40 years of marriage who are suddenly stripped of that retirement when the court awards QDRO’s diverting retirement assets to the offending spouse whose financial planning was not as responsible as their own, and whose offending spouses brought the unilateral petition.   Some of these cases harbor untreated emotional illnesses which family courts will not give the responsible spouse any latitude to testify about or seek help for their beloved life partner in violation of the fundamental right recognized in previous high court cases to care for one’s family members.   In cases of severe concealed financial abuse, no-fault confiscation of retirement assets can happen even when the income of the offending Petitioner far exceeds that the of the non-offending Respondent.

SUMMARY

Despite the strong parallels between Respondents and  recent high court precedents protecting other politically-disfavored classes in marriage rights, and despite the presumptive validity of the fundamental rights of individual Respondents,  SIFC is struggling to convince her constitutional attorneys to pursue a serious and sufficiently-vigorous 14th Amendment challenge,  while there is individual relief available to her under religious freedom protections.      There could be fear that the state appeals courts will deem maintaining parity with other states’ unilateral divorce laws a important state interest, fearing that citizens may then be forced to defend actions undertaken by a malicious spouse in a more permissive state.  

There could be fear of an unknown retroactive liability impact for the state if  either nonconsensual “irreconcilable differences” as unilateral grounds for dissolution were ruled  to be  an equal protection violation, or if exclusion of marital fault in property and custody determination were ruled a substantive due process violation.    Would tens of thousands of forcibly-divorced former Respondents who contested the state-imposed unilateral dissolution of their marriages and were badly treated by the courts then be able to sue the state for restoration of property and parental rights, plus damages?

Though such an outcome would balance and restore fundamental rights that failed to be protected for “Respondents”  under Rational Basis Review a generation ago, which were wrongfully stripped away from a politically weak and disfavored class , there are some liberals and conservatives who politically would still see this outcome as “judicial activism”.   However, this is quite different from the sort of judicial activism that creates new special rights for a politically powerful and well-funded minority group.

 

In  SIFC’s estimation, two elements make unilateral divorce laws unconstitutional in all or most states:

(1)  availability of “irreconcilable differences” as grounds for dissolution of marriage  in contested cases

(2) the exclusion of marital fault as a factor in determining disputed property and child welfare matters

Standerinfamilycourt.com believes these laws give rise to the unconstitutional failure to balance between the fundamental rights of the Petitioner and the fundamental rights  of the Respondent (along with the fundamental rights of other adversely-impacted family members).    All state encroachment on the integrity and sovereignty of the family without a compelling state interest actually transfers societal control from private citizens and families to the government in an unwarranted way, even if it comes at the request of one of the spouses.     Public interest groups devoted to constitutional protections and to the defense of the traditional family should begin  taking this issue very seriously, even if belatedly and for the first time.

 

 

7 Times Around the Jericho Wall |  Let’s Repeal No-Fault Divorce!

www.standerinfamilycourt.com