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.

 (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. 14^th 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 1^st 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 14^th 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.

 

 ( 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)   8^th 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.

  (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.

  (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.

 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