The question is asked, ‘how do we fix the mess we’re in now that the Feminist Imperative has pretty much destroyed marriage as an institution?’ I disagree with the idea of abandoning marriage but this is a classic puritan vs pilgrim vs apostate argument here. I’m pilgrim on this one.
First, stop defining marriage according to the State and Feminist Imperative. To begin, we must reframe the debate and move to a more defensible position that actually has a chance of winning. Marriage hasn’t been killed so much as redefined into an institution completely under the control of the State.
The beginning of the end was when the State stepped in and started requiring miscegenation licenses. A license is a permission to do something the licensee does not have the right to do. If the State grants the license, it has every right to regulate the privilege it has extended and may alter or amend the regulations any time it sees fit and the licensee has a duty to obey. If the State is now totally on Cupcake’s side the options are not to either live in fear of Cupcake or give up on marriage, there’s also the option of giving up on the State’s licensed, privileged marriage.
The idea that marriage can somehow be ‘taken back’ was roundly scoffed (comment; article) when I brought it up and I think the problem is too many people have been blinded by precedent that doesn’t specifically apply to them. In fact, I think the emotions are so out of kilter with respect to marriage that I need to shift the focus a bit to another area in which the State historically exercised a public policy interest directed at the family, often against the will and over the objections of the family. In fact, the situation with homeschooling in the 1970’s through the 1990’s was remarkably similar to the situation with marriage today. The States had laws requiring attendance in either public or private schools which had degenerated to the point of being Twiddle Dumb and Twiddle Dumber. The only way out was to reframe the situation and teach the children at home. That put the homeschoolers up against the police power of the State and most of the States made it very clear that the children belonged to the State.
Many States actively prosecuted parents who homeschooled their children. Parents ran the risk of having the children removed from the home for not sending the children to a State sanctioned school. There were still people who did so but for different reasons. Some States, like Michigan, consistently slam-dunked the homeschoolers until somebody finally came before them with the right issue. The following is the Michigan Supreme Court in People v DeJong, 442 Mich. 266 (1993),501 N.W.2d 127. They explain the issue of religious free exercise and why the DeJong’s won when others (who homeschooled for non-religious reasons) lost. The question wasn’t whether these people were having their rights violated. Of course they were. That’s what the police powers of the State are all about. The question became ‘what, if anything, are we going to do about this.’
Read the case. Really, just read it.
The winning argument that got a religious exemption in the homeschool war, but which only won after two trips up and down the appellate ladder, was based on the fundamental right of religious free exercise and the parents right to determine the education of their children. Essentially, the DeJong’s claimed they had a duty to God to homeschool their children because “the major purpose of education is to show a student how to face God, not just show him how to face the world.” The State was therefore violating their rights of religious free exercise and forcing them to sin by the requirement that they become State certified teachers in order to homeschool their children.
Notice that it wasn’t until they got to the State’s Supreme Court that they finally won. They were prosecuted and convicted. Their conviction was upheld. They were shot down by the Michigan Court of Appeals twice before they finally got their case before their Supreme Court and honestly, this one could have gone to the US Supreme Court. It was cert-worthy. It was not an easy fight, but they won with a 4-3 split. One of the main reasons they won was because they were members of the Home School Legal Defense Association (HSLDA). Pay $100 a year and if the State takes you to court you get legal representation from people who are experts in this particular area. I believe another reason they won was because their refused to accept defeat after losing almost half-a-dozen cases and refused to compromise one iota with respect to their religious beliefs. They demonstrated a ‘truly held and sincere religious belief.’
Read the dissenting opinion and take a look at Employment Div, Dep’t of Human Resources v Smith,494 US 872, 881; 110 S Ct 1595; 108 L Ed 2d 876 (1990), the case the dissent rests so heavily upon. Notice what Justice Scalia said in the Smith case (emphasis added):
*881The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut,310 U. S., at 304-307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania,319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick,321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters,268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder,406 U. S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). 882*882 Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion, cf. Wooley v. Maynard,430 U. S. 705 (1977) (invalidating compelled display of a license plate slogan that offended individual religious beliefs); West Virginia Bd. of Education v. Barnette,319 U. S. 624 (1943) (invalidating compulsory flag salute statute challenged by religious objectors). And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts v. United States Jaycees,468 U. S. 609, 622 (1984) (“An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed”).
Get that? Religious free exercise isn’t enough… it has to be combined with another Constitutionally protected right in order to get a religious exemption to a law that’s neutral and generally applicable (like no-fault divorce statutes). He very helpfully provided a list of sanctioned rights that have won before. So, what other rights can we manage to get violated in order to win?
The Supreme Court has long held a fundamental right to marry, but there’s also that thing called the ‘contract clause’ to the US Constitution. The Supreme Court holds to a three part test based on this case that’s very similar to the rational basis test in deciding whether a State has violated the contract clause. So now, we’re looking at:
- Religious Free Exercise
- Right to Marry
- Prohibition against impairment of contracts
Normally the contract clause would lose, but the religious free exercise claim turns this into an issue of fundamental rights so the court has to apply strict scrutiny. That means the State has to first identify what its compelling interest is in interfering with a contract of marriage that was entered into and agreed upon by both parties as a matter of religious free exercise and their long-standing right to marry. Then it has to demonstrate why it’s forced to violate the conscience of these people and no lesser measures could be taken to achieve the the compelling interest.
What, exactly, is the State’s compelling interest in allowing the wholesale destruction of families when every State in the country holds as a matter of public policy that marriage is beneficial and is to be encouraged and protected? Notice the supporting evidence the court considered and think what kind of supporting evidence could be used in a case in which the subject matter is marriage.
While ‘The Constitution is not a suicide pact,’ the Feminist Imperative most certainly is.
There is a footpath out of this swamp, but for now, that path can only successfully be traveled by Christians. Re-read the DeJong case. The fundamental difference between rational basis review and strict scrutiny is that under rational basis you can’t win but a good set of facts (like the DeJong’s presented) examined under strict scrutiny means it’s actually possible to win. In fact, I think the issue of reclaiming marriage as an area of religious free exercise is even better than the issue of homeschooling. The reason is that the Bible clearly covers every major issue that would become an issue.
- It starts by defining marriage as a covenant entity created by God. A covenant, in the sense that it’s being used here, is a contract to which God is recognized as being party to the contract. An entity in which the State is not a party to the marriage and has no nexus. Have the contract specifically rebut any presumptions of an adhesion contract with the State.
- The contract defines the rights, duties and responsibilities of all parties in the marriage by specifically citing the relevant passages from the Bible; such as Matthew 5 and 19, Ephesians 5, 1st Corinthians 7 and 1st Peter 3.
- The contracting parties specifically convert their duties to God into duties to the spouse within the contract.
- The Parties waive their right to petition the State courts for anything, in favor of binding arbitration before the elders of the church as a religious duty based on 1st Corinthians 6:1-6. The only exception is if the bar for dissolution is reached by either party.
- The Parties agree on what the standard of dissolution is and how the asset distribution will be accomplished should one party meet the bar for dissolution.
- The contract makes the inherently religious nature of the marriage clear, establishing the damage to the offended party if either party fails to meet the bar for dissolution but files a State action anyway.
- The contract makes clear that any children are to be raised within the faith of the parents, even if one of the parents later falls away from the faith. This effectively means either one can leave, but the kids stay with the left-behind spouse. Now the court has to consider the fundamental rights of the children with respect and since the one who leaves is effectively renouncing their faith it’s in the best interests of the children to stay with the faithful parent.
- The contract provides a way out. In keeping with the law of the bondservant, either party who chooses to renounce their faith and leave may do so, but the common law standard applies: that which they brought in, out they go with that.
- The contract is entered into by right, not a matter of privilege and without any regard to the approval or permission of the State.
That kind of marriage would present a much different case than the ones that are regularly destroyed with impunity by courts on a daily basis. The only marriages the courts deal with today are licensed marriages in which the State has a legitimate claim with respect to being a party to the marriage. The problem is overcoming the presumptions and demonstrating an equitable solution for governing the marriage.
The idea is to create a situation in which if they rule against you, they will violate your fundamental rights and force their rational basis argument into a strict scrutiny appellate world. But no court will ever get to see a case like that unless and until people adopt the idea of…
Marriages Go Their Own Way
2. Licensed marriage with contract (prenup)- court does what it wants to do.
3. Unlicensed marriage and no formal written marital contract- court does what it wants to do.