Tag Archives: Parents’ Rights

Equal Protection, family law, Fundamental Rights, Substantive Due Process

Who’s John Gentry, and What’s He Up To? Why?…And Will He Succeed?

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by Standerinfamilycourt

In those days there was no king in Israel; everyone did what was right in his own eyes.    –  Judges 21:25

What happens when a Marine returns to civilian life, becomes a Certified Public Accountant and uses his professional training in an all-out battle to restore the very principles he served overseas to defend?  Hopefully, a lot!   What follows is a Tennessee tale, that is equally true in virtually all other U.S. states.

John Gentry is a familiar and influential voice at parents’ rights rallies, where justified protests take place over the Federal Title IV-D program which effectively separates parents from their children for the corrupt profit of the state, enabled by widespread judicial corruption and lack of independent  oversight.   Survivors of the “family court” system almost need no further explanation of what’s going on.    They know.

( SIFC:  John graciously reviewed this article and provided input, which will be inserted below.)

In this 2017 video, Gentry speaks of the mysterious and questionable deaths in 2010 of a former lady state senator from Georgia and her husband.   Nancy Schafer had been a leader in the late Phyliss Schlafly’s  Eagle Forum, and had been campaigning against the child-trafficking abuses facilitated by Title IV-D funds, which she says in a 2009 radio interview had caused her to lose her seat in the Georgia Senate.    The deaths were officially ruled a murder-suicide, but many doubt the truth of that, due to the death threats Mrs. Schafer had been receiving because of her efforts and high profile exposure of corruption.

(For a shorter version of a similar speech, click here. )

Mr. Gentry, however, is not actually himself an aggrieved parent.    The public record reflects that he married a business owner in 2009, and that she filed a unilateral “no-fault” divorce petition against him in 2014, which he tells us he supported.    Both were middle-aged at the time of the marriage, and they were childless.    The court records reflect that he spent considerable time in court fighting the settlement provisions of the divorce and then appealing them, but on only various technical complaints, rather than bringing a constitutional challenge of the statute itself.

So what caused him to become so passionately involved in doing battle with CPS-sponsored child trafficking for Federal funds, and with exposing the judicial corruption that enables it ?     That’s not entirely clear from any of the available sources, but “standerinfamilycourt” can relate.  Though personally blessed to be able to raise two children to adulthood in an intact marriage that thrived for most of their years growing up,  SIFC sat many days in the courtroom and watched judges ride roughshod over many young fathers, denying them their God-assigned responsibility of ensuring the safety of their own children after wayward wives had unilaterally divorced them and moved in with someone else.    John is gracious not to speak of his estranged wife at all in speeches and interviews, but it seems clear that in all of his pro-se legal filings (of varying effectiveness, over process in his own divorce case),  he joins the rest of us in being appalled that a state law can unilaterally deprive one of the parties of their due process protections.     But….when we see someone else’s children suffering or being legally abused and endangered because of it, soon enough our own battle wounds are subordinated and we take up the even worse offense suffered by those unfortunate families.    CPA’s comply with a strong professional ethics code, and are subject to reliable censure for acts reflecting poorly on the profession, so to see the legal community flouting their standards of professional ethics and getting away with it, is certainly a strong motive for action (to which SIFC can also directly relate.)   These two professions have very significant overlaps.

Yet, John does not appear to be an overt champion of repealing unilateral “no-fault” grounds for divorce, per se.    He seems to strictly focus on reforming judicial accountability and oversight processes, the widespread lack of which greatly exacerbates the evil effects from 49 states maintaining a profoundly unconstitutional “family law” statute on the books.   His main personal beef with the family court system seems to be mostly property-related, believing (according to the Tennessee lower court description) that he was entitled to a share in the business his wife founded before they married.

( SIFC: John’s additional input…
“Although I transformed my ex wife failing business into a successful and internationally recognized brand (subsequently closed due to my ex-wife’s inability to operate a business), my “beef” was intellectual property I created, a patent pending product with international distribution, worth millions, was valued by corrupt court as zero and distributed 100% to my ex wife.  That product too failed under her care.  Very sad.  Even with that, I don’t care about the property.  My “beef” is about the criminal conduct of all the judges and attorneys (including my own attorneys).  Severe deprivation of due process and equal protection.”

Fair enough, since something has to create “standing” to bring access to the courts of appeal.   It is rather typical for family courts to automatically deem the “no-fault” Petitioner to be “more credible” than any Respondent who contests any part of the proceedings, and proceed to extract whatever financial penalty is circumstantially available, to teach others a lesson about challenging judicial authority or this state statute.   Gentry says in a recent (2019) interview that he has two certiorari requests before the U.S. Supreme Court.    The only such request brief (2018)  that “standerinfamilycourt” was able to read does not seem to raise a specific, actionable constitutional challenge, nor ask the Court to consider any specific legal questions.

Mr. Gentry has, however (so far, unsuccessfully) attempted, under 42 U.S.C.  Section 1983, to sue the trial court judge who granted his wife’s civil dissolution petition, hoping in Federal court to pierce though the immunity shield which insulates state judges from liability for actions that are within their subject matter jurisdiction.    The public record does not provide the details of whether he based any of his pleadings on an Article 3 separation-of-powers argument, but the state appeals ruling does not reflect that he made such an argument during the trial, nor acted to reserve his right to appeal on this constitutional basis.    These constitutional matters generally need to be raised way back at the petition response phase of the initial grounds trial to be deemed to have any standing for appeal (at least, based on SIFC’s personal experience), based on court operating rules and precedents.

Having apparently lost or been denied a hearing in 2017 in the U.S. Sixth Circuit, he has successfully attempted to get his case docketed at the U.S. Supreme Court in 2018, but it remains to be seen whether it will ever be heard.   In this instance, the briefs Gentry submitted in early 2018 for his request for certiorari are publicly available.    He requested all eight (at the time) sitting Justices to “recuse themselves”  on his theory that they would each have generalized “probable bias”, which he listed in his brief as the “standard of review”.    Presumably, he has argued this at each level of the appeals process.   SIFC does not really see an effective, specific pleading with respect to Article 3 in that document, nor for that matter any immediately actionable request for relief from the court for which he would be deemed to have standing.    It could be argued quite reasonably that the best (and perhaps only) way for all of the sitting justices to “recuse themselves” is to simply deny certiorari, and move on to the remaining 8,999+ submissions.    The other filed document is a brief request to have filing fees for his “cert” petition waived based on Gentry’s veteran status and service to our country.  The record reflects that this was denied him.

( SIFC: John’s additional input…
“In the Supreme Court of the United States, the clerk’s office concealed 14 of 17 appendixes that evidenced impeachable conduct of magistrates and judges in the district court and sixth circuit.  The impeachable conduct of the federal judges occurred to protect the criminal conduct of the state court judge and attorneys.”

The main point of interest in reading through Gentry’s case and appeal briefs, for those of us hoping to re-route a series of effective constitutional appeals of various state unilateral “no-fault” divorce laws through the Federal courts based on 42 U.S.C.  Section 1983, and based on a specific legal question concerning separation-of-powers, is whether what Gentry argued is closely related to what the divorce appeal cases will be arguing.   It does not appear that the pleadings will be even remotely similar.

Family law reform activist Jeff Morgan sat down last month and videotaped an interview series with Mr. Gentry in Tennessee concerning his remonstrance efforts before the Tennessee legislature.    This particular area of endeavor may hold the more fruitful potential for needed family law reforms vis-à-vis his SCOTUS filings, at least with regard to doing something about the judicial corruption aspect.    Those interviews with Jeff are very articulate and credible, with a good grasp on history and original founding documents.    The aim of the petition of Gentry’s remonstrance is to goad our legislators to stop shirking their constitutional responsibility to oversee the conduct and ethics (including violation of required separation-of-powers) of the judiciary.     It should be pointedly noted, however, that in the case of “adjudicating” unilateral “no-fault” divorce laws, there is no actual provable offense, no lawful cause-of-action, and no constitutionally legitimate judicial role — the bottom line is that the statutes themselves violate the separation of powers in Article 3 of the U.S. Constitution (and the counterpart clauses in all of the state constitutions).    In this case, there are both legislative and judicial foxes guarding the chicken coop!    Gentry, however, does not seem to be focused on this, because his primary concern is with property and parental rights symptoms of the root problem.    There really are too many potent disincentives to better behavior by the judiciary until the root cancer is excised, either by SCOTUS or by legislative repeal of faultless unilateral grounds and repeal of faultless criteria for the property and parental effects of civil “dissolution” .

 

Gentry’s petition of remonstrance was predictably rebuffed when he brought it in January of this year before the Tennessee legislature.   The clerk of the Senate claimed that only sitting legislators could legally bring such a petition, and accused Gentry of misusing the process, according to a January 27 story by Dave Tullis of 92.7 Nooga Radio:  “In the missive below, Mr. Stevens calls the Gentry remonstrance illegal, ludicrous. ‘If it were heard, it would set an evil precedent. All manner of other people would stream before the general assembly and take up all of its time with their grievances, he says. No, it is not the purpose of the general assembly to hear grievances. It is the purpose of the general assembly to write laws.’ …That is essentially is his [Sen. Stephens’] argument. His fear of Mr. Gentry’s making personal argument before senate and house is that it will open the gates for an outpouring of public sentiment against the political machinery that he represents.”

Gee, that’s really rough, Sen. Stephens!    We can’t have the chickens coming home to roost after decades of legislators and judges taking wholesale advantage of the citizens, for crying out loud!

Senator Stephens’ (who practices estate and geriatric law when the legislature is not in session) official January 25 response:

“While I appreciate the effort you have obviously put forward in this endeavor, you have grossly misunderstood the historical and practical implications of remonstrance. Further, you have misread our rules and constitution.  You have no constitutional right to present to the general assembly your remonstrance…

(   SIFC:   Au Contraire:  ” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”– 1st Amendment, U.S. Constitution

“Section 23. That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address of remonstrance. ”
–  Article 1, Constitution of the State of Tennessee    

Earnestly hoping Mr. Gentry has randomly appeared at the state capital without having bothered to read either founding document,  Mr. Stephens continues….. )

” Our rules apply to the members of the general assembly.

James Madison’s famous memorial and remonstrance regarding religious liberty was presented to the Virginia assembly as a MEMBER of the assembly. Although you appear to have read our rules, you have ignored Rule 9 – No one may address the speaker except a member of the senate, and Rule 11, which directs members to only direct their comments to the Speaker.

(   SIFC:   To carefully preserve the highly-lucrative power stranglehold that members of the bar have carefully nurtured over at least two (arguably, all three) branches of government over the course of the last several decades, their promulgation of “operating rules” haven’t hesitated to trounce on the fundamental rights of ordinary citizens, and do furtive end-runs around these constitutional provisions.    This is equally true of court “operating rules” and of legislative chamber rules.    Most ordinary citizens aren’t taught about these, even if they’re fortunate enough to have had a good civics class in school, don’t even know that they exist or that many have corrupt purposes, and with the accountability structures also incapacitated by pervasive collusion, this is a very effective means of ensuring that the peasantry may not avail themselves of their fundamental rights unless they are unusually persistent for peasants.    Indeed, “standerinfamilycourt”,  being very well-educated, otherwise, with a closely-related professional certification, a masters’ degree, considerable business and regulatory law experience, got a first taste of “court rules” as a result of witness stand mode of testimony being repeatedly interrupted and rebuked as “unacceptable” by the family court judge.    With all due respect, Senator, legislative rules don’t apply to Mr. Gentry, so your point about “rules” is irrelevant.   In fact, your “schooling” of Mr. Gentry conveniently ignores the citizen remonstrances that have occurred in other states, made to the legislature, and not through a representative.)

“To think otherwise is absurd. The citizens of Tennessee, nor any republic, would not stand for the expenditure of their resources by their elected representatives if our legislative attention was diverted from legislative deliberation to, instead, sitting through the presentation of such remonstrances by individual citizens.

“There could be hundreds if not thousands filed. It is absolutely ludicrous to even consider that the drafters of our constitution, let alone the citizens who approved its adoption, would spend the time to create a system of representative government only to completely eviscerate its operation through some supposed right of remonstrance which included the right of a citizen or citizens to commandeer its members of the general assembly for the reading of the entire remonstrance by the chief clerk or to even require said “petitioner” to gain the undivided attention of all 132 members at the same time or of each individual body at the same time.

“The citizens of Tennessee have the right guaranteed in Art. I, Section 23, to express their opposition or support of proposed legislative action, government conduct or policy.   

“Like all rights, it is not without limitation. The limitation is the procedure for such an “address of remonstrance.” I am unaware of any procedure in law or in our rules that allow a citizen to file a remonstrance, beyond that in T.C.A. 69-5-922.   

“Such procedures have been established through the adoption of the rules of the house and senate, respectively. The rules apply to the members. The rules provide for presentation of resolutions, petitions and memorials by members of the general assembly and do not address in any way remonstrances.

“I do not have a copy of Mason’s with me in my district office so I do not know if they address the filing of remonstrances. In any event, any member of the general assembly can file a resolution, petition or memorial which would then proceed through the normal legislative process.  I suggest contacting your representative and senator and have your remonstrance presented in the form of a resolution or petition.” [End of Stevens letter]

So, where has Gentry’s effort gone since January?    This, too, is very telling of the long journey involved, even when the petitioner is legally correct, and the objecting solons blowing nothing but smoke.  David Tullis followed up with another article on March 9,  “Senate clerk mum as blocks bid to impeach crooked judges”…

“Whispers about a remonstrance project swirl this week in Nashville as the senate clerk refuses to answer press questions about his rejection of senate rules and a TV station airs a salacious story about Tennessee judges whoring and toking in the tropics.

“Senate clerk Russell Humphrey ignores repeated efforts to interview him about his refusal to give senators copies of the petition for remonstrance on judicial misfeasance and his ignoring senate rules requiring remonstrances to be read to the entire body…Nanette Mitchell, journal clerk for the senate, in two phone calls says she will take a message requesting an interview about the remonstrance to Mr. Humphrey. She says he is not available. Mr. Humphrey makes no return call to tell his side of the story… 

“Nashville TV station WSMV TV4 obtained travel records from the government of Costa Rica showing that legal personalities in Davidson County visited that country at the same time as did a corrupt judge, Casey Moreland of sessions court.

“The vacationing was highlighted by prostitutes and narcotics, the report says. “According to those documents, in 2013, General Sessions Judge Aaron Holt entered and left Costa Rica on the same dates as Moreland.” Lawyers and a Davidson County district attorney, Glenn Funk, also were in the country at the same time as Judge Moreland, who is under a prison sentence….”

Here is a link to a January 29 interview carried on Nooga Radio, where Gentry responded to these events over the air.
Apparently, even if all the members of the state senate were not distributed copies of the remonstrance document, Gentry gained the ear of his own state representative, and nevertheless wound up testifying before a committee at least twice in March and April, bringing his requests for mandatory drug testing of judges, for abolishment of the judicial conduct council (consisting of judges, not of legislators or their agents), and strengthened recusal rules for both legislators and judges.    Whether an independent development or in response to Gentry’s complaint, the legislature considered a measure to rename and reorganize the judicial body to oversee judicial conduct, while (naturally) still leaving it unconstitutionally in the hands of judges, rather than bringing it directly back under the legislature (and mandated separation-of-powers), as the Constitution requires.   It also appears that the “window-dressing” exercise (HB0782/SB0722) might have been scrapped or slowed as a result of Gentry’s April 2 committee testimony.   It remains to be seen whether an authentic reform measure will replace it at some point.

(   SIFC: Jeff Morgan’s March, 2019 interviews on youtube with Gentry and (separately) with Tennessee attorney Connie Reguli, linked above, also shed considerable light on these subsequent events.)

All this said, Gentry  does a valuable service with his studies, of reminding all of  us where legislators are specifically violating their own ethics and conflict-of-interest rules (@ ~23 minutes) in the very process of legislating “family laws”, whereas in many states, family law attorneys with a direct pecuniary interest sit on the “family law” committees, and sometimes even chair them, or they are given (by legislative “rules”) what amounts to unilateral veto power over whether or not a committee-approved reform bill ever makes it to the floor for a vote, via routine scheduling.   To  borrow a football analogy, Gentry’s efforts constitute offensive blocking, but when it comes to comprehensive family law reform (a truly separate issue in its own right) so that state statutes comport with the Constitution, he must not be mistaken for the ball-carrier.

Gentry’s website provides detailed guidance and materials for this process of remonstrance, and petitioning for arms-length judicial oversight in any and all states, as he is currently  in the process of carrying out in Tennessee.   Remonstrance might possibly make the legislative process (to reform state family laws so that they no longer violate the Constitution, on numerous points) more fair in the future, by neutralizing the powerful conflicting interests, but the remonstrance process will not directly result in the needed separate reform of these separately unconstitutional statutes, whether in Tennessee this occurs by successful Federal court action on the basis of  (U.S.) Article 3 challenges of unilateral “no-fault” judicial actions, or it occurs by a successful legislative effort ahead of such a judgment.

Do not rob the poor because he is poor,
Or crush the afflicted at the gate;
 For the Lord will plead their case
And take the life of those who rob them.
– Proverbs 22: 22-23

www.standerinfamilycourt.com

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

 

 

 

 

 

Connection of Unilateral Divorce to SSM, Divorce, Equal Protection, Equal Protection, family law, Fundamental Rights, Religious freedom, Substantive Due Process

Would a Ruling that Unilateral No-Fault Divorce is Unconstitutional REALLY Be “Legislating from the Bench” ?

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by Standerinfamilycourt

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
United States Constitution, Article 3, Section 2, Clause 1

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.    United States Constitution, Article 10

Two landmark cases of the Sexual Revolution in the U.S., namely Roe v. Wade – 1973 (depriving pre-born children of their fundamental right to life), and Obergefell v. Hodges – 2015, legalizing sodomy as “marriage”, were seen by conservatives and original constructionists (with a fair amount of justification, we daresay) as “legislating from the bench”.    An extra-constitutional fundamental right (to “privacy”) was established without actually amending the Constitution via Congressional and state legislative action as called for in Article 5.    Leading up to those cases, several other cases also turned on a judicially-presumed “right of privacy”, including Eisenstadt v. Baird – 1972 (establishing the right of unmarried individuals to purchase contraceptives) and Lawrence v. Texas – 2003 (declaring state laws against sodomy “unconstitutional”).      It should be noted that the fundamental right that is explicit in the Bill of Rights is the right to freedom of association, which came to be closely associated with a presumed “privacy” right which, even worse, has come to override the priority of other conflicting fundamental rights of impacted parties, in order to arrive at some of these activist, individualist decisions that don’t comport with balancing fundamental rights in a way that is best for society as a whole.

As for prioritizing the protection of fundamental rights that inherently conflict with one another, most reasonable people would concur with the principle:  “My fundamental rights end where yours take up.”     For example, a baby’s right to life was ruled in Roe v. Wade to unduly infringe upon a woman’s right to “free association”, but is that reasonable?    A homosexual pair’s right to “free association”, protected by local SOGI laws (Sexual Orientation and Gender Identity) was ruled to have priority over a wedding professional’s free exercise of religion in a matter before the U.S. Supreme Court last year with a landmark ruling in his favor delivered in June.

SCOTUS did (effectively) rule in 2015 that homosexual couples have a fundamental right to remain married, but our unilateral divorce laws continue to deny that same fundamental right to innocent heterosexual spouses who oppose the purported “dissolution” of their marriage as profoundly harmful to their immediate and extended families’ true best interests, and significantly infringing on the family members’ rights to free association and free religious exercise.  In fact, the Petitioner’s presumed right to “free association” with an adulterous partner, and “privacy” are treated as trumping their innocent spouse’s right to free religious exercise and conscience, as well as their right to protection of property with due process of law, along with their right to protection of decades of extended family relationships.    My right to bear arms must necessarily yield to your right to life if I misuse my fundamental right in order to advance my individual selfish interest at your expense.    And so forth.

Most immoral laws and court rulings indeed result from immoral prioritization of conflicting fundamental rights – a balancing that always has been unavoidable when it comes to the Bill of Rights protections.    It is popular (and ridiculously false) to claim that “you can’t legislate morality”,  but is that not precisely what laws against murder, rape, battery, larceny and defamation actually do?   Don’t discrimination laws of all types “legislate morality” ?

C.S. Lewis famously said,

“There is no neutral ground in the universe.   Every square inch, every split second, is claimed by God and counterclaimed by Satan.”

Indeed, if someone isn’t legislating morality, it certainly doesn’t leave just a neutral vacuum.     The evidence is all around us that somebody else is surely going to be legislating immorality –and in constantly increasing amounts,  to the corrosive detriment of the whole of society.    As the morality and sense of the good of the whole thereby disintegrates, the whole nation can go down to historic ruin because immoral laws can be exceedingly difficult to reverse no matter how much vile impact they’ve produced.

This concludes the long introduction to the topic at-hand.
Our U.S. Constitution and state constitutions were designed with an intentional separation-of-powers so that the three branches,  legislative, executive and judicial, historically operated with prudent boundaries; checks-and-balances on each other.    It wasn’t perfect, but it continued to pervasively function well over a long period of time —  until the Sexual Revolution hit in full force in the 1970’s.   In addition, the concept of Federalism served to set boundaries of balance between states’ power and the power of national leaders.     Unfortunately, both of these mechanisms in recent decades have worked together to make the erosion of equal protection in marriage laws enacted with unconstitutional statutory provisions increasingly difficult to counter or overturn, at least with regard to the heterosexuals who (after all) produce the children who become the next generation of citizens.

As we’ve seen since former President Obama swept into office in 2008, it’s been a far different story with regard to homosexuals, who achieved superior protections to all other citizens, and relaxation of those legal boundaries, vis-à-vis heterosexuals .   Homosexuals have typically not been required to undertake the expensive burden of taking marriage cases through all levels of the state courts before a lower Federal court would hear and rule on the case.    Homosexuals have often been extended special privilege in overturning a state marriage law that state judiciary authorities declined to review.    By contrast, heterosexuals in modern times have been forced to bear the expensive burden of exhausting all state channels of review, with SCOTUS being the first allowed Federal  engagement point of review.   The odds of getting a constitutional challenge heard there are approximately 90 to 1 as recently reported.     Reportedly, less than 1% of the 9,000 some cases submitted for SCOTUS docketing ever make it oral arguments.    Unless at least four Justices agree to hear the case, it will never be heard, and no reason need be given.   To make matters worse, the confirmation of Neil Gorsuch to the Court revealed that the Justices had been using a “vetting pool” of clerks, rather than having their own clerks read the cases, reducing the chances of a case which so fundamentally “takes on” the Sexual Revolution having its day in highest court in the land even more remote.    To his credit, Justice Gorsuch announced that he would be joining Justice Alito in breaking with that convenience.    Most recently, Justice Kavanaugh was mum on that issue, so presumably he’s using the “cert” pool, as the now-retired Justice Kennedy did.   That means liberal clerks still probably outnumber conservative clerks in that pool, but “standerinfamilycourt” digresses except to say that even the conservative clerks are going to have an ideological bias against the perception of “legislating from the bench”.

Unfortunately, the whole concept of “legislating from the bench”,  tends to be ideologically charged.   It refers to using courts to violate the constitutional separation of powers in Articles 1 and 3, also the interference with Federalism and states’ rights prohibited by Article 10.    Our constitutional republic is gravely harmed in the clear-cut cases of “legislating from the bench” where special rights have been created for a group of people in a case precedent that will in fact deny fundamental rights to everyone else in order to implement and enforce the same.    Our constitutional republic is equally harmed when an ideological majority uses the concept as an excuse to deny fundamental rights to a group of people whose state constitutions and the Bill of Rights is supposed to guarantee them.   The latter has historically been accomplished either through applying an inappropriate standard of judicial review, or wrongfully declining to hear such a case coming from a lower level.

For example, in 1986, Florida pro-se constitutional challenger Judith Brumbaugh related in her book, “Judge, Please Don’t Strike that Gavel on My Marriage”, that she managed to get her appeal of Florida’s unilateral “no-fault” divorce law docketed at the U.S. Supreme Court.    They ultimately declined to hear the case “for want of a Federal question”.    It was striking that Judith’s request for “cert” even got docketed.   This blog has documented many earlier challenges to unilateral “no-fault” divorce laws based on religious freedom and equal protection grounds, where the state appeals courts applied the rational basis standard of review, instead of the strict scrutiny basis that is constitutionally required when fundamental rights are being denied by a state statute.   The latter requires that the states prove a compelling interest in denying those fundamental rights, and that such laws be narrowly-tailored to meet that interest in the least intrusive way upon those rights.    What tends to happen is that SCOTUS will apply Article 10 first, and say there is no “Federal question” (unless conflicting results are found in lower courts in different circuits on the same issue) even when it is clear that not only is the Bill of Rights being violated, but the state courts are tolerating wholesale violations of Articles 1 and 3, and thereby compromising the separation-of-powers between the branches of government.    What’s really happening is the actual inverse of “legislating from the bench”,  that is, taking away true judicial discretion and validating a phony cause-of-action from the floors of the state legislative bodies, while being allowed to do it through what amounts to judicial collusion and self-dealing.

Although SCOTUS intervened twice in equal protection cases involving marriage or divorce between homosexuals between 2013 and 2015, the last heterosexual divorce case “standerinfamilycourt” could find that was heard appears to be in 1996 out of Mississippi, and it involved the termination of parental rights for a mother who had suffered a divorce to which she probably acquiesced.    (Mississippi’s “no-fault” law is the only one in the country that was comprehensively enacted in 1972 so as to not force divorce on a non-consenting spouse except on a fault basis.)   The matter at issue was not even the divorce itself, but her inability to pay the transcript costs that blocked her from fighting the termination of her parental rights at the request of her now-“remarried” husband.    There was already significant precedent for the costs of access to courts not to be permitted to deny access to her avenues of initial hearing or appeal.  That case was simply remanded back to the state on that very narrow basis.

In the landmark case, Loving v Virginia (1967) there were no such concerns with violating Article 10.    The Lovings had secured the help of the ACLU to fight the state’s anti-miscegenation laws all the way up through the state appellate system in a class action suit, until certiorari was requested and granted from SCOTUS.   However, neither was there any artificial requirement imposed by SCOTUS to wait for differing outcomes in other regions of the country, lest the spurious claim be made of “want of a Federal question”.    The Supremacy Clause (Article VI, Clause 2) ….

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

….makes such assertions highly questionable when Bill of Rights protections are being denied by state legislatures to its citizens.
The sequence of events in the Loving case, as laid out in the majority SCOTUS opinion:

“On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court. The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation statutes and, after modifying the sentence, affirmed the convictions. The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966…”

Fundamental rights to stay married, and to live where they wished were on the line in this case that was decided unanimously by the Justices, two and a half years before unilateral “no-fault” divorce laws began to be enacted in the various states.   While it should never be the case, the ugly reality is that the changeable prevailing morality tends to drive landmark SCOTUS decisions and fundamental rights get some lip service, but tend to take a back seat.  For more on the constitutional challenges to unilateral “no-fault” divorce  that were decided at the state level under an erroneous standard of judicial review, but never heard by SCOTUS, please click here, and here.   Several of the gay marriage cases decided in 2014 cited the right to stay married.

If subsequent state legislation conflicts with a state constitution, there is no violation of Federalism for SCOTUS to enforce the state constitution where a state supreme court denied certiorari.

First-level state appeals are required to be heard, but are sometimes dismissed on technicalities, and hearings for state Supreme Court appeals can be declined without comment, simply based on the number of cases submitted, with “standerinfamilycourt’s” constitutional attorney advising that the state Supreme Court might hear perhaps 5% of the few thousand appeals submitted each session.   Given the influence-peddling on the state level for states that have an elected judiciary, which was ongoing both before and after the jaw-dropping Citizens United ruling by SCOTUS (money is “speech”), it is important, in theory at least, to have an unobstructed path to SCOTUS.    Appellate decisions at the state level, and demonstrably also by SCOTUS, are becoming almost uniformly ideological rather than independent, with the effect that constitutional checks-and-balances between the branches of government are becoming ever-weaker, and stare decisis (ruling by precedent) is pretty much a joke these days.   While in a rare instance there might be a favorable individual challenge where the ruling would be limited in its impact to the law as applied to just that case,  no state appellate court wants to invalidate 50 years worth of unconstitutional marriage dissolutions by admitting the laws are unconstitutional on their face, knowing the social chaos that would result, so these courts will be duplicitous in avoiding ever being put in a situation where they would have to so rule.    Some basis is going to have the be found for taking a constitutional challenge up through the Federal court system despite the long history of being barred from doing so by Article 10 arguments.

In one sense, given the long history of barriers and difficulty of getting any true appellate justice in 1st and 14th Amendment-based challenges to unilateral “no-fault” divorce laws, either on the state or Federal levels, the question of whether it would be “legislating from the bench” to declare them unconstitutional on this basis might seem like a moot or futile question.    However, if judges could be sued in Federal court because they ruled while having no true subject matter jurisdiction due to the Article 3 violations entailed in the statute, then this might suddenly become a very relevant question.    As this post is being written, the theory that state divorce statutes unconstitutionally strip judges of the discretion required by Article 3 is being tested in Federal court in several states.    As soon as some initial outcomes are available, the updates will be the subject of a future post.

Then I will draw near to you for judgment; and I will be a swift witness against the sorcerers and against the adulterers and against those who swear falsely, and against those who oppress the wage earner in his wages, the widow and the orphan, and those who turn aside the alien and do not fear Me,” says the Lord of hosts.   “For I, the Lord, do not change; therefore you, O sons of Jacob, are not consumed.
– Malachi 3: 5-6

www.standerinfamilycourt.com

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

 

citizenship, Divorce, Equal Protection, family law, Fundamental Rights, Lost culture, morality, Substantive Due Process

Dear Texas Lawmakers: A Guest Blog

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– by Kristi  Davis

Dear Members of the Texas State Committee on Juvenile Justice and Family Issues:

I came before you in March of 2017 to testify for HB93 for the repeal of no-fault divorce laws in Texas. My testimony can be viewed online on your website.

Now I would like to present to you an analogy to help bring better understanding of what you are allowing when you have allowed no-fault divorce to continue in our state.

You received your privilege of representing people of our state when those people exercised their privilege to vote and voted for you. You chose to run; they chose to vote. The result is the seat you are now sitting in. All this took place because there are rules in place to create a healthy environment for us to “do government”.

So please imagine this chaotic scenario:

What would you think if one of your constituents walked into the Capitol Building one day and declared that you were no longer their choice for office and must be removed?  This person is not just any constituent; this person voted for you.

And what would you think if they had the erroneous right and ability to remove you simply by making a subjective statement on how they no longer like this relationship you are now in, as voter and representative?

Imagine they could simply file a complaint at the information desk which would guarantee the issue be brought up on the House floor in front of everyone. There really is no need to discuss the issue on the floor, after all, because they need no reason for your removal.  And you will have no opportunity to object to their statement because your side of the story need not be heard. How can you defend yourself, really, when you have not been accused of doing any wrong? The situation has nothing to do with your work performance, anyway. It all comes down to their whims and singular feelings about your relationship. They no longer want you in your seat. That is all that is needed.

What if you wanted to keep your seat? After all, this one voter does not represent your whole constituency; others are involved!
I regret to tell you, the rules were changed years ago that allow one voter, any one voter, to remove you at any time for no reason other than their feelings, and there is nothing you can do to stop it. Once the voter objects, your job is gone and your career is over. The entire process can be completed in as little as two months’ time, because we wouldn’t want to inconvenience the public with the legal bill to defend your job.

Please remember: this voter also has access to everything you own and all your private information. They can walk into your office at any time and take your computer, read your emails, force your aides to speak against you, even take over your office and lock your door! They can force your aides to become their aides and work for their campaign to elect someone else in your place. You cannot stop it. But then again, why would you? Even though they voluntarily entered this relationship and chose to vote, you wouldn’t want to force someone to stay enslaved in this voter/representative relationship, would you?

This process could take place at any time, with any representative, as many times as a person would choose, ad nauseum.

Representatives could be shuffled in and out of office the whole session long. I know that making laws is why you are in office, that’s your job, but it’s ok if your job never gets done due to these personal whims of one person. Sure, the whole of the public would pay the price, but aren’t this individual’s desires more important? The courts say this is in the best interest of all your constituents, though years of research would say they are exactly wrong.

Would you think this public policy is not such a great one and needs to be amended or removed?

What would you do if the media folks showed up and opposed your efforts to change these policies? They would make a handsome living off broadcasting these voter objections at the Capitol, after all. But they would not say that out loud; instead, they will tell you that you are being selfish and old-fashioned. They would say that the law is now in the eye of the beholder, subject to redefinition by anyone living under it. Would you be “ok” with that?

Chaos.

Can you imagine this sort of logic applied to every area of law? If it can happen to the most fundamental and important of relationships- family ties, human beings- why not apply to it to everything else, because everything else is less important?
This matter could not be more serious.

Where do we draw the line? Where do you draw the line?
You may think my analogy sounds impossible, but that is what people of 50 years ago thought of the idea of a society where people dissolve marriage and family with the click of a button, literally.
If you do not stop this nonsense here, this analogy that sounds impossible today could be the way of life tomorrow. You are in the position to draw the line.

Let’s reestablish a healthy environment to “do family”; support healthy family relationships by requiring contested divorce cases to be brought for real reasons and every case to be heard thoroughly by a judge. If doing what is in the best interest of the children is really valued at all in this legislature, I implore you to leave hypocrisy behind and protect family by repealing unilateral divorce.

Most sincerely,
Kristi Davis
Texas Citizen
3-Time (Generational) Divorce  Sufferer under No-Fault Divorce in Texas

(    SIFC:   Kristi Davis testified on March 8, 2017 before this Texas Legislative Committee where at least three committee members actually derive income, either directly or indirectly, from unilateral divorce laws.   She has recently launched a blog page called  Healing and Repealing for Strong Family Trees – www.healingandrepealing.com  )

 

 

Divorce, Equal Protection, family law, Fundamental Rights, Religious freedom, Spiritual Warfare, Substantive Due Process

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

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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!

Church Discipline, citizenship, Connection of Unilateral Divorce to SSM, Discipleship, morality

Covering Thy Garment with Violence: WHY LUTHER RENDERED MARRIAGE UNTO CAESAR

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WontLetGo!by Standerinfamilycourt

Does any one of you, when he has a case against his neighbor, dare to go to law before the unrighteous and not before the saints? 
Or do you not know that the saints will judge the world?  If the world is judged by you, are you not competent to  constitute the smallest law courts?   Do you not know that we will judge angels? How much more matters of this life?   So if you have law courts dealing with matters of this life,   do you appoint them as judges who are of no account in the church?   I say this to your shame.   Is it so, that there is not among you one wise man who will be able to decide between his brethren,  but brother goes to law with brother, and that before unbelievers?
– 1  Cor.  6: 1-6

 

He saith to them: Because Moses by reason of the hardness of your heart permitted you to put away your wives: but from the beginning it was not so.    –  Matthew 19:8

 

In November, 2014 quite an interdenominational debate broke out between between church leaders over a document called The Marriage Pledge, as reported in First Things magazine.   As of the date of the November article, 464 Lutheran, Presbyterian, Methodist, Anglican, Mennonite, Catholic, Baptist and Pentecostal leaders had agreed on paper that if marriage was redefined by the courts to include homosexual unions, these leaders would discontinue their agency role of signing their respective states’ marriage certificates, and henceforth would only issue ecclesiastical marriage certificates for weddings they perform.   If government benefits and state recognition of the marriage was additionally desired, the newlyweds would have a second stop to make down at the county courthouse.   Clearly this was aimed at protecting their right-of-conscience before God, and to provide a way to bear witness to their communities.    What was a bit less clear is the extent this measure, of itself, would shield these clergy folk or their churches from discrimination charges, given the homofascist bent toward coerced affirmation of homosexuality–regardless of any government-bestowed benefits they may claim to be pursuing from “marriage equality”.    Also unclear was where this would leave divorce in the absence of a state certificate, a function the church has never administered (with the brief exception of the pre-medieval Roman Church under two sets of Co-Emperors for approximately two generations before that empire fell).

Prominent  evangelical dissenters to this no-agency approach immediately protested that this is merely “grandstanding” and “sounding retreat” on the Church’s engagement in the public square, surrendering the moral influence over marriage definition without a fight.   Ryan Anderson, of the Heritage Foundation said that this retreat was “premature”.    Other Christian leaders, such as James Dobson of Focus on the Family, and Matt Staver, of the Liberty Counsel called for no retreat, but civil disobedience among the men of God, to the point of being jailed if need-be, to defend against the religious freedom violations that could be expected to accompany the judicially-mandated sodomization of civil marriage .

Standerinfamilycourt would like to suggest that a further motive underlies the dissent of the objectors to separating matrimony at the altar from the increasingly meaningless civil certificate available down at the courthouse.   One of the online commenters to the mildly dissenting First Things article dated November 22, 2014  put half a finger on it, as follows:

“And how are the bona fides of those seeking Holy Matrimony to be established?
Is there a proposal to establish a system of courts to give clarity on who can marry and how marriages can be annulled?  Is it proposed to offer Holy Matrimony to those who have been divorced?  Will there be a difference between those who have contracted a marriage in a religious context and those who had only a civil ceremony and what of those who have a religiously validated divorce?
Will there be some national register to help prevent bigamous marriages? Might clergy facilitating (unknowingly) bigamous marriages be seen as having a liability?”    – M. R.

 

It’s clear that if participating churches undertook such an initiative, there would be an administrative burden entailed, including some sort of secure central data base to detect potential bigamy or polygamy, something that would not be insurmountable to accomplish.    As a practical matter, though, it seems the dissenters realize that the larger issue is that churches cannot and will not be able to administer divorce and should not administer annulment.   Which brings us to the history of how and why the Church’s role marrying people got handed over to the civil authorities in the first place….

One of the impetuses of the Reformation, if honesty prevails, was a desire to find a way to provide for divorce, something the Roman Catholic Church, no longer wielding civil authority following the fall of Constantinople, returned to strictly prohibiting.   Annulments were administered by the Church, but were more difficult to obtain than they are today.    Martin Luther and the key figures of the Reformation including Calvin kept some corrupt company in the unsavory personage of one Desiderius Erasmus, a humanist who wrote  (ever so much like the serpent in the garden):

 “I record my pity for people who are loosely held together by an unhappy marriage and yet would have no hope of abstaining from fornication if they were released from it.  I want to secure their salvation by some means, nor have I any wish for this to happen without the consent of the church. I am no innovator.

But it is possible that the spirit of Christ may not have revealed the whole truth to the church all at once.  And while the church cannot make Christ’s decrees of no effect, she can none the less interpret them as may best tend to the salvation of men, relaxing here and drawing tighter there, as time and circumstance may require.

Christ wished that all his people might be perfect, no question of divorce arising among them, and the church has endeavoured to secure this full rigour from everyone.  I am no supporter of divorce. But how can you be sure that the same church, in her zeal to find a way for the salvation even of weaker brethren, may not think that this is the place for some relaxation?  The Gospel is not superseded; it is adapted by those to whom its application is entrusted, so as to secure the salvation of all men.  My opinion is that we are misusing the interpretation of the gospel principles, with the result that the force of its teaching in our standards of behavior is fading away. To give an example, Christ so wished his people to abstain from murder that he did not permit men to be angry.  We interpret this as meaning angry without cause.  Likewise Christ so wished his people to abstain from perjury that he forbade an oath of any kind. This we interpret as meaning that we must not swear without just cause.  In the same way he so much wished them to abstain from divorce that he forbade it altogether.  What interpretation the church can put upon this, I do not decide. I wish she could interpret it so as to promote many men’s salvation. I do not make any final proposals on this point. I leave the right of decision to the church and content myself with drawing attention to the point.” (My Dear Erasmus, pp.110-111)

With that, Bro. E went slithering off into the night without so much as taking responsibility for his own deceitful rationalizations!  As a result of this corrupting influence, several heresies have been evident in the Protestant Church from its founding:

  • that the standard Christ set was too high for men and women to attain (rejects the power of the Holy Spirit and true regeneration).
  • that happiness is a much higher good than holiness.
  • that lowering the moral standard will result in “more” salvation (ignores 1 Cor. 6:9-10 and Gal. 5:21 consequences of baptism without regeneration; fails to grasp that there’s actually no moral bottom to that strategy.)
  • that Jesus did not abrogate all attempts to dissolve marriage for any cause in Matthew 5 and Matthew 19, Mark 10, and Luke 16.
  • that identification with Christ’s death on the cross made salvation “secure” through “grace” regardless of the trajectory of one’s life afterward.

According to John Witte, Jr., Director of the Law and Religion Program, Emory University writing in the Journal of Law and Religion,  Martin Luther saw civil jurisdiction over marriage law as the panacea to several evils that had emerged in Europe after Catholic canon law proved inadequate to regulate marriage in society at large, including  prostitution, concubinage, clerics patronizing brothels, desertion, bigamy, incest, and the resulting backlash wherein parents were sending their sons and daughters into crowded monasteries and cloisters (“nunneries”) for escape.   When we seek a solution without first seeking God’s face, the chances are good that this “solution” will not be consistent with the biblical commandments left by Jesus and Paul, hence the idea that (as Erasmus put it),  “it is possible that the spirit of Christ may not have revealed the whole truth to the church all at once…….of weaker brethren, may not think that this is the place for some relaxation?“

The Church of today should have no problem following Christ in owning marriage only, for members only, and leaving marriage of the unregenerated to the state’s regulation.  God’s design created only marriage and made no provision whatsoever for its dissolution.    As the Manhattan Declaration (somewhat hypocritically) asserts,  marriage belongs to God, not Caesar.    As  Jesus Christ asserted….”from the beginning, it was not so.   What God has joined, let no man separate.”       There is, therefore, no scriptural reason for the Church to offer any form of marriage dissolution.

Indeed,  Luther handed marriage over to the legislation of the German state, and other Reformation figures did likewise in their own countries, because had they not done so, divorce would never have become available to satisfy this emerging Erasmean philosophy.   For the reverse reason, today’s dissenting voices to the Marriage Pledge are in no hurry to recover accountable stewardship of holy matrimony from the increasingly unaccountable hands of Caesar.    Most realize that to do so would necessitate Church acceptance that original marriage is indissoluble as Jesus Christ said it was, and that (therefore) remarriage where there is a living estranged spouse, is in all cases adultery, as Jesus made unquestionably clear was the case.   (The scriptural authority for this is beyond the scope of this blog, but can be read at this link. )

It would be immoral for the Church to get into the divorce business, and impractical to administer willful sinfulness that attempted marriage dissolution represents.   The Church would need to start teaching that if there is no civil marriage for the state to “dissolve”, the tax benefits should be less important than the generational and eternal benefits of rendering the secular state powerless to intrude on a marriage at the behest of only one spouse, and teach members to take seriously the threat to final salvation that unrepented remarriage adultery brings.

Further, the Church need not delve into or pass judgment on the circumstances behind any prior divorce in those who want an ecclesiastical wedding,  as the commenter suggested above, if she simply submits faithfully to the judgment of Christ,  repeated at least twice by Him:  whosoever marries a [person] who has been put away commits [ongoing] adultery.    Since the latter does not constitute a valid marriage in God’s eyes, taking back from the state her jurisdiction over only the marriage that God recognizes, is greatly simplified for the Church by obeying Him.   For the same reason, the only inquiry that need be made of prior civil marriages is whether or not the prior spouse on either side is deceased (easily verifiable through public civil records at the outset, and a central data base thereafter).   Weddings recorded under God’s law would simply no longer take place in the Church unless neither proposed spouse was still married in God’s eyes to anyone else.   This would immediately clear the Church of all related hypocrisy charges and restore her witness overnight.    The Church, after correcting heretical teaching concerning “biblical grounds” for divorce (i.e. neither adultery, nor dissertion, but solely and exclusively repentance from a biblically unlawful marriage according to Luke 16:18),  would then leave it to the Holy Spirit to convict individual members whether they should consider dissolving unbiblical remarriages undertaken ignorantly due to decades of widespread false teaching.   Churches should further emphasize ongoing celibacy after exiting the biblically-adulterous union or reconciliation with the true spouse for those who dissolve adulterous remarriages.

There are some churches already experimenting with the reform of  finding alternatives to civil marriage who were earlier motivated by the abusive unilateral divorce system which is (or should be considered) wholly incompatible with faithful church doctrine.   They advise people on matters such as property holding alternatives and other alternative means of leveraging their marital status without a civil marriage license.    These marriages are likely to be treated as common law marriages for state purposes including child welfare.  As mentioned earlier, it is unclear whether such an approach would provide any cover from LGBT activists who might potentially sue or bring discrimination charges attacking a thoroughly biblical definition of marriage according to Matt. 19:4-6.   The reliance in that regard would be on the Lord’s protection, resulting from prayer and obedience.

[disclaimer:  In providing the link reference above, SIFC does not endorse  Pastor Matt Trewhella’s assertion:   “God intended the State to have jurisdiction over a marriage for two reasons – 1). in the case of divorce, and 2). when crimes are committed i.e., adultery, bigamy. etc.”   There is  actually no biblical  support for the secular state to have any  jurisdiction over holy matrimony or to dissolve what He forbids to be dissolved – render unto God what is God’s. ]

The solutions suggested above are for reforming and purifying holy matrimony among the spiritually regenerated within the Church.   Just as marriage is a covenant, it relies on the New Covenant in Christ’s blood, where He told us that His law would be written in our hearts.   One irony of the Reformation is that few of its leaders truly served Christ and were regenerated in that way.    Some endorsed polygamy by letter to the royal family when the occasion arose,  and Luther was terribly anti-Semitic, later inspiring Hitler.   As can be readily seen from the major writings,  they thought that dismissing the moral law as seemed necessary for inclusion of sinners into the church (sound familiar?) would save them.   Holding them to an “appearance” of morality without the Holy Spirit actually changing their hearts was imagined to be redemptive.    The Catholic canon law was ineffective in bringing morality to the unregenerated largely because the Roman Church had a history since the days of the Emperor Constantine of taking almost the same approach, deeming people to earn salvation once included, and be sanctified by Church rites.    Yet historical tracking of the results of Luther’s family law “reforms” show they yielded only a further slide in public morality.

The evils Martin Luther was seeking to address are very real and very likely to recur when the civil law is inherently immoral, both in its structure and in its delivery system.   One could argue that the majority of those evils prevail under today’s “no-fault” regime (with the possible exception of shipping our youth off to monastic life to escape the resulting prevalence of societal immorality).

Civil law is therefore needed for the larger unregenerated segment of society who are not under grace, who cannot claim inclusion in the New Covenant whereby God’s law is written on the heart.   However,  civil law that discriminates between the Petitioner and the Respondent in protecting fundamental rights is as corrosive as anarchy.   The Bill of Rights should protect the non-offending Respondent to the full extent that the system gives preference to the Petitioner regardless of the latter’s own hostile acts against the marriage.   Enormous taxpayer burden results from the current failure of most state divorce laws to hold the at-fault party financially responsible.   Liberal interests lately are eager to point to statistics that imply that the divorce rate is slowing or levelling off, and this is likely to be used to rationalize continued non-reform.   However,  a careful analysis of the data shows that unilateral divorce is growing most among couples married more than 30 years, and this is unexpectedly threating the retirement security of many due to the unconscionable features of the “no-fault” regime.   Unilateral divorce also continues to drag down the marriage rates in many countries in favor of unmarried cohabitation, which has been proven to be very dangerous to the safety of any children involved.

The demand for homosexual “marriage” would simply not exist if the law held heterosexual marriage commitments binding merely to the extent that it protects business partnerships or commercial contracts.   The fact that none of the political activism by the Christian Right over the past 30 years has been directed toward ending such an immoral and unconstitutional travesty is very telling, as contrasted with the massive efforts exerted to oppose abortion and “Wave Two” of marriage redefinition.   If the U.S. Supreme Court does unilaterally impose homosexual marriage on all 50 states, a shift of focus to this neglected accountability could provide the silver lining that might restore God’s full definition of marriage a generation from now.    If so, demand for deviant forms of marriage that cannot be easily and cheaply escaped would dry up in due time.

The banana in the jar represents a fallacious claim to a pseudo-biblical “exception clause” that is easily and overwhelmingly disproven by  the application of disciplined, widely accepted principles of basic hermeneutics, which for some odd reason, tend to be suspended for this particular topic by evangelical Pharisees so hopelessly infatuated with Matthew 19:9.   Will the monkey let go of the banana and break free of the jar when worldly persecution sets in– or shamelessly hold on tighter?

 

www.standerinfamilycourt.com

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

 

 

 

 

 

 

citizenship, Equal Protection, family law, Fundamental Rights, marriage, Religious freedom

You Asked: How Can “No-Fault” Divorce Laws be Unconstitutional?

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constitution-burningReagan

by Standerinfamilycourt.com

This post goes out to Barney, who raised a very valid question last weekend on our companion facebook page:   https://www.facebook.com/nofaultequalsnoaccountability/posts/1527839317455483

Considering the current reach of our fairly new page, there must be dozens of critical thinkers like Barney out there with the same question.    SIFC is thankful for the question and the engagement,  an opportunity to contribute some expanded thought.    All great social reform conversations began exactly this way, and we of course could have just as easily been ignored, so Barney (and his silent counterparts) are sincerely a blessing.    Our legal team will, no doubt,  get the very same question from the bench next spring.     Indeed, I can quote a recent definition-of-marriage judicial  assertion very much to the point from Judge Stephen Reinhardt of the (liberal) 9th U.S. Circuit:

“If the defendants [states of Idaho and Nevada] really wished to ensure that as many children as possible had married parents, they would do well to rescind the right of no-fault divorce, or to divorce altogether.   Neither has done so.  Such reforms might face constitutional difficulties  of their own, but at least they would further the states’ asserted interest in solidifying marriage.”      

– Latta v Otter,  October 7, 2014

Judge Reinhardt, we’ll notice,  stopped well short of saying that such reforms would be unconstitutional.    As the spate of 5-4  Supreme Court decisions clearly demonstrate in cases where the competing fundamental rights of the opposing parties are actually valid on both sides, these competing rights must be prioritized and  must be carefully balanced.   Brilliant legal minds can honestly disagree on the appropriate balance of fundamental rights based on their particular world view, and hopefully they are not wasting taxpayer dollars by accusing one another of misunderstanding the Constitution.

In this blog, we could paste in links to various cases, but we’ve actually done so in several earlier posts, and will be doing so in the very next planned weekly post on relevant legal definitions, so for brevity we won’t do so here.   We’ll come back later and make appropriate linkages.

The basic rule is that a law is presumed to be constitutional if it is aimed a legitimate state purpose (however ineffectively).    That is, it is deemed constitutional unless it intrinsically, or by its means of implementation, it deprives a citizen or class of citizens of one or more fundamental rights.    In one recent example, various U.S. Circuit Courts have ruled that homosexual couples legally married in one state have a fundamental right to stay married if they move to another state:

JudgeSutton

What are some other fundamental rights?    They are basically anything in the Bill of Rights, or that an authoritative ruling has established as a binding precedent: (free exercise of religion, life, defense of property,  family privacy, parental rights in the education and direction of their children, the equal right to bring a defense against a criminal or civil accusation that would strip life, liberty or property, etc.).

If it’s established that a citizen’s fundamental right is being infringed by a state law, then it is no longer good enough just to have a legitimate state purpose behind it.    In that case, the state must prove two additional things for the law to still be deemed constitutional:   (1) that the state interest is compelling, AND (2) they are implementing it by choosing among available alternatives only the means that least infringes or deprives citizens of that fundamental right.   The Supreme Court has ruled numerous times that the 14th  Amendment requires this.   Meeting both the compelling interest and the least restrictive means tests becomes very difficult for the state where there are indeed fundamental rights being intruded upon!

And how should valid but competing fundamental rights be balanced?   For example, in late term abortions, shouldn’t a 7-month pre-born child’s right to life be prioritized over the mother’s asserted  right to privacy?   Does the state truly have a compelling interest in guaranteeing the mother’s right to privacy under the 14th Amendment, to the extent that it actually supercedes another person’s right to life?

How should someone’s fundamental right to liberty and freedom of association be balanced against their innocent spouse’s right to protection of property, to defend against a civil accusation (as “irreconcilable differences” most surely is) that would strip their freedom of association (with children) or strip their property (such as their retirement funds while the other spouse has committed financial abuse in pursuing an affair)?

Many states do not allow marital fault to be considered in either dividing property or determining child custody.   What is the state’s compelling reason for this, given that a dozen or so states do take marital fault into consideration for these purposes, and given that not doing so sets an offending spouse up to actually profit from their own destructive acts against the marriage?   In fact there may be some legitimate state reasons for this,  but this surely does not offset a non-offending spouse’s fundamental right to due process over their property and parental rights!   In practice, some states may only allow the defrauded spouse to prove any financial abuse in court if they agree with the state and their petitioning spouse that a marriage is “irreconcilable”,  which may conflict with their biblical convictions, and conflict with any right a few states still give to bring evidence that irreconcilable differences do not actually exist (as in the case of an emotionally ill spouse who in reality needs treatment more than they truthfully need a divorce).   What about a discarded spouse’s right of conscience, guaranteed by the 1st Amendment and by most state constitutions, to act according to their biblical conviction if they believe and obey the truly startling and radical words of Jesus (Luke 16:18):

 “Anyone who divorces his wife and marries another woman commits adultery, and the man who marries a divorced woman commits adultery.”    

The state may have a legitimate reason for seeking to provide a low-cost exit from a marriage, but since all 50 states’ current no-fault laws infringe on the fundamental constitutional rights to stay married, and to family privacy and self-governance for both spouses and any children, what’s the compelling state reason for not having minimum requirements and evidence of professional counseling before accepting only one spouse’s opinion concluding that “all efforts to reconcile have failed”, or that “future efforts to reconcile would not be in the best interests of the family”?   What’s the compelling state interest in not considering other impacted family members’ views on their best interests?   What’s the compelling state interest in facilitating and sanctioning adultery in preference to the existing low-conflict marriage, or in shielding the offending party from incurring meaningful natural financial consequences of divorcing for selfish reasons?    Given the vast amount of damning evidence on the cost of unilateral divorce to state and local governments (hence, taxpayers) over the past 45 years, isn’t the compelling state interest actually in the opposite direction?

It’s also instructive to look at what marriage has become under the no-fault regime.   Unilateral divorce was supposed to “reduce acrimony” (although stripping all of the fundamental rights of one spouse to give blatant legal preference to the other makes it seem like the framers were smoking something),  it was supposed to “protect the children from harm in watching their parents deal with conflict” (never mind the tenfold physical and emotional abuse that is typically in store for the kids at the hands of the live-in boyfriend or girlfriend that has replaced the legitimate mother or father).    When individual sexual autonomy started to trump the compelling interests of society and the extended family as a whole, the meaning of government’s role in protecting marriage profoundly shifted.   Another recent ruling on a gay marriage case stated this point brilliantly, in SIFC’s estimation:

“One starts from the premise that governments got into the business of defining marriage, not to regulate love but to regulate sex…..one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.   One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means.     People may not need the government’s encouragement to have sex.   And they may not need the government’s encouragement to propagate the species.  But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish.”

– DeBoer v Snyder,   November 6, 2014

Judge Jeffrey Sutton,  U.S. 6th Circuit Court of Appeals

Unilateral divorce laws intrude into the integrity of the family in a tyrannical attempt to regulate mere affection.   Or, as Texas attorney Ed Truncellito describes our post-1970’s stripped-down version of matrimony in  his blog  “Why No One Is Married“:

“In truth, our no-fault laws, as implemented, abolished true marriage…….Although cohabitation is handicapped in many ways, it unfortunately has one important advantage: ordinary cohabitation keeps government out of the home.    In contrast, the registered cohabitation that we still call “marriage” invokes the jurisdiction of government officers. They receive authority to manage the lives of both spouses and their children with legal force. ”  

 

So given all this, what would a constitutional no-fault law look like?

(1) Irreconcilable differences as a non evidence-based ground for divorce would be available only by mutual or cross petition — with fully agreed child and property terms, otherwise it would revert to fault-based procedure to protect the due process rights of the non-offending spouse who for moral or religious reasons does not want to end the marriage.

(What we currently have, while deceitfully called “no-fault”,  is actually forced, unilateral, guaranteed divorce that excuses and often rewards destructive behavior toward the marriage).

(2) Proof and balanced consideration of marital fault would be restored in all contested cases where property and child custody matters could not be agreed between the spouses, and would be done without intrusive and non evidence-based court assessments of when the marriage allegedly broke down.   Proof of dissipation and marital fault would be merged and would simply follow the full proven time frame(s) of the offense(s).

(3) Contested, non-mutual out-of-state and offshore divorce decrees where the grounds and agreed settlement terms do not conform with (1) above will not be honored against assets and child arrangements domiciled in the state, and in-state marital fault proceedings will be required to effect those divisions.

(4) Equal evidence parameters and time frames to bring proof of fault would be restored to both spouses by abolishing court rules and operating procedures which are currently designed to suppress evidence of fault in order to give preference to the Petitioner over the Respondent.

Will these reforms force people to stay married against their wills?   That’s an interesting question since studies show that 80% of spouses in this country are divorced against their will.    It’s also an interesting question because additional studies show a high rate of remarriage to the same first spouse after civil divorce  and even after subsequent remarriage(s).   Other studies show a 60-70% divorce rate for second and subsequent remarriages, and a 97% failure rate for any relationship begun in adultery (this may include cohabitation and marriage combined).     In practice, these reforms will more likely just even out the power balance between spouses in resolving their differences, possibly increasing the percentage of mutual petitions if honest reconciliation efforts fail.   It will certainly make non-mutual divorces more expensive in some cases.    In a rare few cases, people unhappily married to a non-offending religious objector to divorce may not be able to obtain an in-state divorce because they can’t prove serious fault where none exists.   Under the Fourteenth Amendment, that’s as it should be.

Parting wisdom from Jesus:   “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning……”

The disciples said to him, “If this is the situation between a husband and wife, it is better not to marry.”    – Matthew 19:10

 

Indeed.   One may freely choose their behavior,  but they should not get to also choose the consequences.

 

 

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

www.standerinfamilycourt. com

 

 

 

 

 

 

 

 

 

 

Equal Protection, Fundamental Rights, Religious freedom, Substantive Due Process

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

1 Comment

 

 

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

 

 

 

 

 

Connection of Unilateral Divorce to SSM, Equal Protection, Fundamental Rights, Religious freedom

BUCKING “NO-FAULT” DIVORCE: CONSTITUTIONAL CASE HISTORY IN THE U.S. 1970-Present – Part 2

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IlSupCtBg

by  Standerinfamilycourt

Part 2 – 2000 – 2014    (Part 1 – 1970-1999)

 

       Pharisees:  “Tell us then, what do You think? Is it lawful to give a poll-tax to Caesar, or not?”

But Jesus perceived their malice, and said, “Why are you testing Me, you hypocrites?  Show Me the coin used for the poll-tax.” And they brought Him a denarius.   And He said to them, “Whose likeness and inscription is this?”  They  said to Him, “Caesar’s.” Then He said to them,  “Then render to Caesar the things that are Caesar’s; and to God the things that are God’s.”

Matthew 22:17-21

 

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.

God said let Us make mankind in Our image.   He created marriage to bear the image of the Godhead, the Holy Trinity of Father, Son and Holy Spirit, including its permenance.   Marriage, therefore, cannot bear “Caesar’s”  image and cannot “belong” to the State.   Everything the God of Angel Armies said about marriage is contrary to everything the State now decrees, to devalue marriage and distort its true purpose.

 

 

Standerinfamilycourt  began Part 1 of this post by relating the story of the train ride downtown with my divorce attorney to consult for the first time with the constitutional law attorneys whom we hoped would agree to take our religious freedom case.   We had just received notice and copy of a response motion by opposing counsel in the property division trial, and we were going over it in the hour it took the train to reach downtown Chicago.   According to my attorney, this opposing document  was filed rather superfluously, in response to a motion we had filed as a formality to reserve our right to bring our anticipated constitutional appeal.   I was stunned to see the following assertion in that document, though perhaps it didn’t shock my attorney:

“…Petitioner affirmatively states that by the Respondent’s logic, one could use their religious convictions to delay or defeat or enhance any law, just by arguing religion.   The Courts have reaffirmed the traditional doctrine that marriage is a civil contract between three parties: the husband, the wife, and the State.   If the parties were allowed to use religious arguments or feelings to obviate, obfuscate, or obliterate the provisions of the Illinois Marriage and Dissolution of Marriage Act, then the entire system would fall to the whims or beliefs of 11 million people.” 

(Obviously, there’s at least one liberally-minded attorney who needs to crack out her copy of Illinois’  very brief Religious Freedom Restoration Act, or her Bible – preferably, both!    I’d love to know which state my covenant husband and I  were supposedly “wed” to,  since we don’t originally hail from Illinois, and we were married by our pastor in a state that didn’t adopt unilateral divorce until 2010.      – And, since there’s an Omnipotent Creator Authority and Righteous Judge in heaven to whom marriage sovereignly does belong,  may the entire system indeed fall! )

A couple of religious freedom cases follow from Texas and Ohio, and an oddball Tennessee case from 2014 where some folks, who weren’t married in God’s (or that state’s) eyes to begin with, were clamoring for a divorce.

 

7.  Truncellito v Truncellito, Texas (2000)     Sup  Ct of TX 00-826

Texas is a very colorful state in which to study this topic of history.   Many states saw the enormous flaws and inequities in UMDA, and legislators were understandably reluctant to enact it verbatim.   In addition to rejecting the standard “irreconcilable differences” language, the Texas legislature also rejected the notion that the “no-fault” process was appropriate where one of the spouses (with clean hands) did not want to end the marriage.  In other words, they voted to maintain the balance of fundamental rights to liberty, property and autonomy of family life free from court intrusion, by not allowing the courts to apply “no-fault” unless the petition was mutual or uncontested.

Herein lies the unexamined difference between unilateral (involuntary or forced) and “no-fault” (mutual and voluntary).   Using the latter interchangeably with the former and comparing the result to a car insurance policy is intellectually dishonest.   This is another one of those false analogies so prevalent in immoral social movements and their resulting legislation.

The Texas no-fault grounds language reads: “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.”

Mr. Truncellito was a divorce attorney who was the Respondent in his wife’s 1998 unilateral petition.   Mr. Truncellito was representing a client,  another contesting Respondent husband, when he discovered that the transcribed statute did not match the enacted statute which expressly provided for “no-fault” grounds only in non-contested cases, otherwise, the requirement for fault-based grounds still applied.

Truncellito brought an appeal of his own divorce decree on that technical basis, which was overruled in the appellate court, and that decision was affirmed by the Texas Supreme Court.

FB profile 7xtjw (SIFC  Commentary:  In her book, “Stolen Vows” and in subsequent published articles, author Judy Parejko commented on the strong economic interests in the Texas legal community in ensuring there was strict unilateral application of the “no-fault” law, rather than the voluntary application the legislature intended.   Surrounded by states with strict unilateral divorce laws, there was an economic fear that clients would be lost to out-of-state divorce travel.  The situation is totally opposite today, with Texas attorneys actively advertising to poach clients from states who are re-thinking unilateral divorce.)

 

8.  Waite v Waite, Texas (2001)     C.A. 14th District, Houston

As noted above, the Texas no-fault grounds language reads: “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.”

The constitutional challenge brought by the Respondent husband was a 1st Amendment Establishment Clause challenge alleging that the language and definitions in the statute are intrinsically religious and therefore entangle the court in areas where they should not be making inquiry.   Further, the challenge asserted that unilateral establishment of grounds violates the Free Exercise clause by requiring the court to interfere in a religious dispute, contending that the terms “legitimate ends of the marriage” and “reasonable expectation of reconciliation” have an unavoidable religious dimension.

There were additional challenges that were based on unique clauses in portions of the Texas constitution which are not analogous to other states or to the U.S. Constitution.   One of these challenges implied a due process complaint, but did not reference the 14th amendment.   The appeal also asserted that the “no-fault” proceedings violated the privacy of documents. These were all overruled, except for the privacy issue which the court said was not ripe for review because it was unclear which documents had been produced.

(There was no challenge brought in this case that the statute limited the “no-fault” proceedings to uncontested cases.   The Truncellito challenge had been dismissed by the Texas Supreme Court the year before, on November 22, 2000.)

The court applied rational basis review and held that it was bound to presume constitutionality upon the enacted law, disagreeing that a civil determination of the specific terms in the grounds required religious inquiry.

 

Highlights of Dissenting Opinion:   The dissenting judge concluded that because Texas courts have recognized marriage as having a religious component, the term “legitimate ends of the marital relationship” cannot be construed to exclude that religious aspect.   He went on to say that since the Respondent raised a “rights of conscience” issue.  The RFRA (Religious Freedom Restoration Act) test should have been applied and the state been required to establish a compelling need for the language in question, and shown that they had undertaken the least restrictive means of meeting that interest.   He concurred with the state’s authority to enact a “no-fault” law (as possibly contrasted with a unilateral law), but the state had to do so while complying with the First Amendment.

Per the 2-judge majority:

“Although courts may observe as a factual matter that some individuals have religious beliefs concerning their marriages, and although courts are bound to protect every individual’s rights to have such beliefs, courts certainly could not make, and have not made, any legal decision regarding whether marriage has a religious component because that is neither a legal issue nor a matter that courts may constitutionally decide, contrary to the dissent’s numerous references to marriage as “a relationship that Texas case law recognizes as religious in nature,” to marriage as being characterized by our state courts as a divine institution ordained by God, to “a wealth of Texas jurisprudence characterizing ․ marriage as having a religious component,” and the like.

The Dissent:

Because the court rejects Mr. Waite’s state constitutional challenge under the “rights of conscience” guaranty of Article I, Section 6, I respectfully dissent.  See Davenport v. Garcia, 834 S.W.2d 4, 11 (Tex.1992).   The court should not reach Mr. Waite’s challenges under the United States Constitution because the statute violates the Texas Constitution.  I concur in the court’s disposition of both Mr. Waite’s challenges to the award of attorney’s fees and all of his challenges to the Texas no-fault divorce statute under the Texas Constitution, except for his challenge under the “rights of conscience” guaranty in Article I, Section 6.  For reasons explained below, I agree with Mr. Waite that the no-fault divorce statute violates this provision of our state constitution by impermissibly interfering with Texans’ rights of conscience in matters of religion.

 

FB profile 7xtjw ( SIFC commentary: The religious conscience violation in this case was not tied with any punitive treatment by the court that directly led to wrongful impairment of property rights, as occurred in our case, but the dissenting opinion held the Respondent’s free exercise guarantee to be in direct conflict with the granting of a unilateral divorce because such judgment violated the Respondent’s right of conscience.   [Loud whistling applause from this blogger! ]   This judge showed uncommon insight in drawing a distinction between the state’s remit to establish a consensual “no fault” process, and the wholly unconstitutional practice of unilateral dissolution of marriage.   As a further note, this was a 3-judge panel, so this case could have gone either way.   Standerinfamilycourt believes the dissenting opinion was far better developed and informed than the majority opinion.  Those who oppose true free exercise are usually fine with letting people believe whatever they wish, but they often refuse to acknowledge a person’s 1st Amendment right to actually walk out that belief without suffering negative sanctions for doing so.)

 

9.  MacFarlane v MacFarlane, Ohio (2006)   8th District C.A. #3155

In this case where the husband filed a unilateral petition in 2003, the couple was Catholic and the wife had always home-schooled the four children.   The husband was not in agreement that the homeschooling continue once the children were high school age, and the resulting dispute between husband and wife escalated until the marriage deteriorated.

FB profile 7xtjw  (SIFC note:  Since the original writing of this blog, I have had the privilege of becoming acquainted with Mrs. MacFarlane, who now runs the very effective ministry known as Mary’s Advocates, and goes by the name Bai.    As commonly occurs in such cases, the judge writing the legal judgment is not completely accurate with all of the facts, and Bai has contacted us requesting a correction in the last sentence above, which was taken directly from the court document.    Here is Bai’s clarification sent to us:

[The judge had written this:  On pages 4 and 5 of this court document it reads as follows:

{¶ 4} As part of their religious beliefs and desire to have control over the education of their children, Husband and Wife agreed that their children would be home schooled.   Husband testified that he thought it would only be for their early school years and that eventually they would be put in a traditional school setting;  Wife, however, wanted the boys home schooled until adolescence or high school.

{¶ 6} Husband testified that sometime in 2000, he started talking to Wife about enrolling the children in a traditional school. He also discussed moving to Canada, where he had made friends with a group of like-minded Catholics who had started their own school for about eight families. From the outset of these discussions,  Wife was adamant that she did not want the children in a traditional school. This disagreement became a source of constant tension in the marriage.

Bai MacFarlane:  ” In the year 2000, our oldest child turned 9, so it is a little early to be arguing about adolescence or high school homeschooling, which I assert that we were not arguing about during that year.   When my husband abandoned the marital home, our oldest was 11 years-old which is still early to be arguing about high school homeschooling. Our youngest was 2.   From the Cuyahoga County court’s perspective, stay-at-home moms have to find work outside the home if the Plaintiff-Dad does not want to continue supporting his wife and children as he had been before abandoning marriage.  Our county also cannot tolerate children being taught a biblical-based view of marriage in which abandoning the home is equivalent to breaking the family.   See excerpt from court psychologist here.” ]

 

Both husband and wife filed for legal separation, then the husband amended his petition to seek a divorce.  After about a year’s proceedings, the wife started petitioning the court to defer the case to a canonical tribunal.   She asserted the Catholic Church had the authority over their marriage by the couple’s prior mutual agreement.

The husband sought custody of the children and wanted to put them in parochial schools.   Court records documented that both spouses had issues with erratic behavior, but custody was eventually awarded to the husband-Petitioner due to several hostile actions of the wife, some of which occurred in court.   The wife went through several attorneys and appears to have been poorly-advised,  since she acted in a way that,  per court procedures, forfeited her early rights to arbitration.   The wife’s appeal included a charge of religious discrimination on the basis the court decided custody in a way that precluded homeschooling for the children and, therefore, to raise them in the Catholic faith.   The wife’s appeal also alleged trial court antagonism toward the Catholic faith because it referred to her outspoken advocacy of homeschooling perjoratively as a “crusade”, and lastly that the court failed to undertake appropriate consideration of a pattern of domestic abuse by the husband in awarding custody of the children to the husband.

The appeals court ruled that since there was no written agreement between the spouses to yield any marriage issues to Church arbitration, the state had the sole jurisdiction.   They ruled divorce was appropriately granted, and custody appropriately awarded based on the recommendations of a court-appointed psychologist.   With regard to Ohio’s constitution clause on freedom of religion, it cites “freedom of worship” (rather than religious exercise) and contains a conscience clause.   The appeals court ruled that the court cannot consider religious preference in determining matters of custody, and that the court did not show preference between the husband’s beliefs and the wife’s, nor was it interfering with her freedom to continue to parent the children in her faith as the noncustodial parent.

The appeals court dismissed the wife’s allegation of court antagonism toward the Catholic faith.   With regard to her domestic abuse assertions, the appeals court found the wife to be the “less credible party” and ruled that the trial court did not abuse its discretion with regard to her domestic violence assertion, which aside from some controlling behavior by the husband, appeared to have been an isolated incident rather than a pattern.   The trial court was unanimously affirmed on all issues.

FB profile 7xtjw  (SIFC commentary: here’s a case where an inhumane law served nobody in the family, and probably did great damage to the children,  for all the court pontificating that took place about their welfare.  The presence of “acrimony” where, by unilateral theory, there isn’t supposed to be any invariably gets blamed on the person whose fundamental rights are being stripped away.   Both spouses had pre-existing serious emotional problems that were well-documented in the court record, but neither spouse was incentivized to get the treatment they both needed.   Had the law not been unilateral, there would have been far more incentive to seek much-needed individual and marital counseling through this couple’s well-established church connections.  Space should have been left for voluntary and informal church-based mediation without court involvement, which would have been more the case had fault still been required to be proven in order to dissolve the marriage. 

Nobody was emotionally abusing the children until divorce and forced separation of assets and custody was imposed.   It requires tremendous composure and inner grounding to remain stable during an imposed divorce that violates deep religious convictions, and nearly impossible for someone with a background of emotional instability.  In the total absence of adultery, substance abuse, or domestic violence, the state’s mangling of this family is truly tragic.

Additionally, Ohio’s constitution seems a bit weak in its reference to “worship” instead of free exercise, but it was what it was.   The wife’s access to religious protection under the stronger U.S. Constitution provision was probably out of reach,  since divorce cases usually aren’t heard in Federal courts, and then there remained the problem of sorting between the gray areas of disagreement between two Catholic parents.   Of note:  Ohio did not have a  Religious Freedom Restoration Act enacted at the time, but if it had, its application would likely have been moot unless Mrs. MacFarlane had asserted in a more effective way that the divorce itself was against her right of conscience and against the teaching of the Catholic church.  This whole case is just sad. )

 

10.  Borman v Pyles-Borman (Tennessee) 2014   Circuit Court, Roane County No. 2014CV36   

In a very different kind of equal protection case, two homosexuals who went to Iowa to get “married”, came back to Tennessee to live, and were now suing the state for the “right” to get a divorce.   They allege that the state is treating their relationship as a “second-class marriage” in not legally recognizing it for purposes of granting a divorce.   (Never mind that the plaintiffs themselves are treating their own “marriage” as a second-class relationship!)

The theory of the plaintiffs is that “doctrinal developments” have changed the precedent whereby the U.S. Supreme Court let stand a Minnesota Supreme Court ruling decided in 1972 on a “rational basis” standard that though there was a fundamental right to complementary marriage, no 14th Amendment right existed to state recognition of homosexual relationships.    One of those “doctrinal developments” seems to be that the state has reduced its purpose in recognizing and fostering the institution of marriage in purposeful protection of the natural family unit from generation to generation, to merely a registry of cohabitation (while it lasts).

“Equal protection” and “privacy”  in the eyes of many lower courts is the unfettered right of the individual to be as immoral as he or she desires to be,  but at the same time, individuals are treated by these courts as having no rights if they instead desire to live morally and as holy scripture commands, for the sake of the generations coming behind them.

This court agreed with all the other courts that marriage is a fundamental right, but stated that neither the Tennessee Supreme Court nor the U.S. Supreme Court has ever ruled that homosexuals have a right to marry someone of the same gender.

If an individual has an undisputed fundamental right to complementarian marriage, then it should follow that they have a fundamental right to remain married, absent any proof of just interest for the state in terminating legal recognition of the marriage.   “Irreconciliable Differences” is the statutory grounds, but in a contested case (and it was not specified in the ruling whether Mr. Pyles-Borman was actually contesting)  any such finding is merely a pre-mandated conclusion or inference if evidence to the contrary  is barred, and not considered.   The most important evidence to the contrary is always the non-offending, contesting spouse’s desire to reconcile the marriage in order to achieve the purpose for which the state originally had an interest in providing legal protections.

This case is being further appealed through the deep pockets of the homosexual rights movement, and if affirmed by the state appeals courts, it could be the first divorce case heard by a Federal court in decades.   That would set an interesting precedent.    However, the Federal case, Tanco v Haslam  (and three other cases involving homosexual couples married in other states) and seeking recognition in Tennessee is likely to be ruled on first, having been heard in August, 2014 by the Sixth Circuit Court of Appeals.

 

 

11.  Romero v Romero, Kentucky (2014)   Circuit Court, Jefferson County

A lesbian couple married in Massachusetts in 2004 also brought a divorce case in a state that did not recognize out of state homosexual marriages.    The case was dismissed in February,, 2014.    A similar lawsuit was filed by homosexual legal activists to challenge the constitutionality of Kentucky’s definition of marriage on a 14th Amendment equal protection basis.   However, the constitutional challenge in this case became moot when several homosexual couples suing to overturn the state’s ban on homosexual marriage prevailed in July, 2014.

FB profile 7xtjw SIFC Update:   On November 6, 2014,  the U.S. Sixth Circuit Court of Appeals reversed the Federal District Court decisions in four cases (collectively, DeBoer v Snyder) seeking to invalidate each state’s ban on recognition of homosexual marriage, therefore upholding those bans, including Tennessee and Kentucky – hence impacting both of the above cases.   It remains to be seen whether the U.S. Supreme Court will agree to hear the resulting appeal after declining last month to rule on several others.    

For now, the courts are fiercely asserting Federal and state ownership, definition and determination of that which sovereignly belongs to God, and was defined by God.    That Divine and Sovereign definition entails both complementarity (Matthew 19:4) and permanence (Matthew 19:6).

Standerinfamilycourt believes that a return to the standard of complementarity can only be accomplished, over time, by a return to appropriate state respect and protection for the permanence of the marriage covenant,  wherever there is neither mutual consent for dissolution, nor substantial cause for involuntary dissolution.    Over time, the improved stability of true families will dissipate the demand for socially deviant forms of the marriage contract, whether to legitimize and financially enable adultery,  polygamy or homosexuality.   This was the case for generations,  that demand for such contracts was low prior to the misguided unilateral divorce legislation.   Although a return to the proven path may be painful, its result will be far more sustainable in the long run,  especially for the budgets of local governments.

Why did I end this post about constitutional challenges to the “no-fault” law with a couple of homosexual rights cases?    Followers of Christ believe that God, not the State, gave us both our fundamental liberty, as well as our state and Federal constitutions.    I have already argued that in similar fashion, it was God who gave us His holy institution of marriage.  All three are Divine, purpose-bestowed privileges that can be revoked if abused, both from individuals and from an entire society.

We read in Proverbs 14:  “Every wise woman builds her house, but a foolish one tears it down with her own hands. “

I believe this timeless proverb from the Lord applies equally to Lady Justice, as we are seeing with the continued, escalating devaluation of both the purpose and effect of marriage in our society.    There will come a day for fire, brimstone,  and foreign invaders if we remain on this defiant path, but for the past 45 years, our patient Heavenly Father has been allowing America to suffer the natural consequences of her rebellion, as any loving father would hope for repentance from the heart, against His definition of the institution He defined and He created.

The second reason I end with these cases is my comprehensive study of all the 2013-2014 religious freedom and homosexual marriage rights cases, in my search to understand just what constitutes a legally viable class.   With these cases, we’ve clearly gone well beyond limiting disenfranchised and politically-disfavored classes to immutable characteristics, as state and Federal rulings handed down across the land this past year have been “all over the map” in terms of the level of review or scrutiny applied.    In some of the cases, judges are asserting that a group of people have a fundamental right to marriage based on a proclivity they were not born with.

Is it such a stretch from these recent decisions that a currently unprotected class of citizens should be recognized as a “suspect” class meriting heightened scrutiny over the unilateral dissolution of their longstanding marriages due to their shared, common convictions around its biblical and traditional permanence? 

 

 

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

–  www.standerinfamilycourt.com

 

 

 

 

 

 

 

 

 

 

Connection of Unilateral Divorce to SSM, Equal Protection, Fundamental Rights, Religious freedom, Spiritual Warfare

BUCKING “NO-FAULT” DIVORCE: CONSTITUTIONAL CASE HISTORY IN THE U.S. 1970-Present – Part 1

IlSupCtBg

By Standerinfamilycourt.com

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.

 

  1. 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.

FB profile 7xtjw (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.”

FB profile 7xtjw 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.

FB profile 7xtjw (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.

FB profile 7xtjw(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.

 

FB profile 7xtjw  (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.

 

FB profile 7xtjw (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.

 

 FB profile 7xtjw (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.

 FB profile 7xtjw (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!

www.standerinfamilycourt.com

 

 

 

 

 

citizenship, Fundamental Rights, Religious freedom, Spiritual Warfare

Enemies of Religious Freedom=> God vs. the Gavel: The Perils of Extreme Religious Liberty

Standerinfamilycourt.com  Blog Commentary:   This post is to remind that there are influential people out there who fervently wish the latter portion of the 1st Amendment didn’t exist at all.    People who think that the founding fathers’ purpose in the Establishment clause was to protect government from religion (amazing how even some law professors didn’t pay attention in history class),  while most of us are perfectly clear from the context of WHY this nation was founded that it was the other way around.     These forces rejoiced when a Supreme Court decision about peyote mushrooms 25 years ago significantly watered down the Free Exercise clause.   Were these forces infuriated when Congress tried to restore it with 1993 legislation which was intended to appropriately balance the interests, and to apply the law to all 50 states?  Did they rejoice when the U.S. Supreme Court slapped down the portion of that law that applied to the states?   Did they settle into a glowering resentment as a few states subsequently adopted verbatim  Federal language in state legislation?   Hard to say.  By some accounts even the ACLU was onboard with RFRA in the early days (must have been the peyote mushrooms at issue) , and the Congressional record reflects broad bipartisan support of that legislation, but most states didn’t rush to adopt RFRA’s in that era.

Then came the very wise 2014 Burwell v Hobby Lobby decision – which dealt with forced provision of contraception to employees.   Despite the loud howling that society was going to unravel if employers weren’t uniformly compelled  to be the source of all birth control,  this crowd knew that considerably more  was at stake for the homosexual agenda, the abortion agenda, and as they may soon find out….the unilateral divorce agenda.   Religious freedom protection,  when done in a way that merely restores and reaffirms the balanced constitutional intent in the original language of the 1st Amendment,  is absolutely lethal  to virtually every aspect of the liberal social agenda.    What we’ve witnessed since 1990 is a football game between activist judges and the people of the United States marked by a series of back and forth interceptions.

This week some sickening news broke in the wake of the 9th Circuit Court of Appeals decision striking down Idaho’s constitutional definition of marriage as between one man and one woman.    An ordained ministry couple who run a wedding chapel in Coeur D’Alene is under threat of being jailed because they refuse to officiate a homosexual wedding that mocks God.    A few years ago, a Christian father in Massachusetts was  jailed when he exercised his parental rights and held his 5-year old out of mandatory public school pornographic homosexual indocrination classes (to which he was not even entitled to advance parental notice).    In New Mexico, a Christian photographer was fined for referring a homosexual couple on because she could not ethically shoot another faux wedding that was morally repugnant to her.   She was told by her state high court that violating her deeply held convictions was the price for the privilege of doing business in the state.    The original Free Exercise clause should  have been adequate protection for each of these innocent citizens against those who would criminalize biblical ethics, but since it was not, these states were permitted to enforce criminal sanctions against them because those states either lacked a RFRA, or the version enacted varied from the Federal version in a way that made it ineffective.

In reading the piece below, the critical thinker won’t be fooled by the extreme negative examples offered up by Prof. Hamilton.   Why?  Because wherever there is an attempt to apply RFRA inappropriately, to wit:

[ “…the forced marriage of adolescents into polygamous marriages, the violence of white supremacist or radical jihadist prison gangs…The perpetrators of 9/11 were religious zealots. So were the parents who let their children die. Roman Catholic bishops covered up for child abusers and endangered one child after another to protect the religious institution from scandal.”  ]   such facts will reliably trigger a situation where the governing authority will have no problem meeting their burden of demonstrating a compelling interest.    In such situations, “Gavel” wins (as does God), but Prof. Hamilton didn’t finish those  stories for her audience, and it’s unclear that religious freedom defenses were actually asserted in any of these situations.    The liberal camp is desperately trying to get the religious freedom ball back by means of a “fake”.    Prof.  Hamilton and her cohort would have us believe the balance of interests reflected in state and Federal RFRA laws is “extreme”.

“But the fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness,  gentleness,  self-control; against such things there is no law.”    Galatians 5:22-23

All this said, standerinfamilycourt.com heartily salutes Prof. Hamilton for her excellent job of cataloging the up to the minute status of the various states’ RFRA legislation, an invaluable service.  I’d propose that defenders of religious freedom might use Prof. Hamilton’s useful link to keep one eye on their state legislative agenda in the months ahead.

 

God vs. the Gavel
The Perils of Extreme Religious Liberty
By:

Marci A. Hamilton

October 1, 2014
BookTalk

by Marci A. Hamilton, the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

*This post originally appeared on Hamilton and Griffin on Rights.

How do you talk about the unspeakable? A decade ago, it was taboo to criticize religion or religious believers in print. They were a benign presence in America right next to apple pie.   I wrote God vs. the Gavel: Religion and the Rule of Law then to defeat this taboo, because it was masking a reality most Americans would want to know.

There I stacked up transgressions of religious actors, including the sexual abuse and medical neglect (to death) of children, the forced marriage of adolescents into polygamous marriages, the violence of white supremacist or radical jihadist prison gangs, and even the questionable dealings of religious developers who forced incompatible uses like homeless shelters into residential neighborhoods. It was all for religion, with results that were not so benign.

The destruction of the taboo was necessary in a just society. The perpetrators of 9/11 were religious zealots. So were the parents who let their children die. Roman Catholic bishops covered up for child abusers and endangered one child after another to protect the religious institution from scandal. Then the same pattern appeared across virtually all religious denominations. These were atrocities.

Before these criminal acts reminded us of the power of religion to be both transcendent and horrible, Congress had ratcheted up the rights of religious believers by passing the misbegotten Religious Freedom Restoration Act (RFRA) in 1993 and 2000. Hardly anyone understood what it meant either time and no one was thinking of jihadists, clergy child predators, or children dying from medical neglect, in part because mainstream religious lobbyists intentionally presented a wholesome face to Congress, arguing that religious believers faced discrimination across the country that needed to be corrected by the statute.

What could possibly be wrong with “restoring” religious freedom? A lot, when it is not an actual restoration but rather a new concoction that handed believers rights to avoid the law that they never had before.

Then RFRA metastasized as religious lobbyists demanded the enactment of state RFRAs, with the argument that if it was good for the federal government, it was good for the states. Nineteen states have followed suit, and lobbyists are still pushing in the rest.

I wrote God vs. the Gavel: The Perils of Extreme Religious Liberty, to unmask RFRA for what it is and to explain to the American public what it desperately needs to know: the opaque, legalistic mumbo jumbo of RFRA and the culture it has generated carve out a pathway to child abuse and neglect, discrimination, and tyranny. The Burwell v. Hobby Lobby case and decision were shocking to many Americans, but not to me. It is only one example of what happens when we give religious actors extreme rights.

My goal with The Perils of Extreme Religious Liberty is to educate as many as possible about the perils of extreme religious liberty, the need to fight for the protection of the vulnerable, and the wisdom of repealing the RFRAs. Even religious liberty needs to be leavened with common sense.

FB profile 7xtjw SIFC Further Note:   Marci Hamilton was lead counsel for the city of Boerne, Texas, in the religious freedom case  Boerne v. Flores before the U.S. Supreme Court.   In this case, the Supreme court ruled that the Federal RFRA passed by Congress could not be applied to the states.   This prompted several states to legislatively adopt their own versions of RFRA,  many of them verbatim versions of the Federal law.