by Standerinfamilycourt.com
“For though we walk (live) in the flesh, we are not carrying on our warfare according to the flesh and using mere human weapons.
For the weapons of our warfare are not physical [weapons of flesh and blood], but they are mighty before God for the overthrow and destruction of strongholds,
[Inasmuch as we] refute arguments and theories and reasonings and every proud and lofty thing that sets itself up against the [true] knowledge of God; and we lead every thought and purpose away captive into the obedience of Christ (the Messiah, the Anointed One)”
– 2 Corinthians 10: 3-5 (Amplified)
Part 3: PREPARATION FOR APPEAL CONTINUES….
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.
Only God could bring down the fortified wall of Jericho that had stood for 3,000 years, and was the most formidable wall in the history of the world at that time. In the same way, this appeal won’t be what pulls the tyrannical unilateral divorce law down, but the prayers and the honor of God’s glory behind this appeal (and hopefully more appeals to come in more states) that will pull the law down. The principle of Federalism in our American tradition requires that this be a state-by-state process, as we’ve seen with those who wish to complete the destruction of marriage by further redefinition. Only a mighty act of God (and uncharacteristic acts of human courage and leadership) could ever result in the U.S. Supreme Court agreeing to take up the unilateral divorce issue, even if there’s constitutional victory for us at the state level. I’m still praying for this, for nothing will be too hard for El Elyon, God Most High.
I mentioned in my first post that our constitutional law attorneys advised us that we will have to lose all of the technical points in our appeal before any constitutional arguments will be ruled on. Now that’s discouraging- like peering up a fortified wall!
From my simple-minded layperson perspective, it’s pretty hard to separate the technical from the constitutional on several of the key points, and it hasn’t gotten any easier with all the research I’ve done since that summer day in downtown Chicago. It seems that “abuse of discretion” and denial of equal protection or violation of my right of free religious exercise intertwine symbiotically – are cross-motivated, if you will. I know I’ve had at least one wrestling conversation with my attorney debating whether we argue that the law itself is unconstitutional, or the law as applied to the facts of my case is unconstitutional…”arguments and theories and reasonings and and lofty things that set themselves up against the knowledge of God” (Hopefully I’ll get a chance to understand a lot more than I do now about that distinction.)
The religious freedom case will, unfortunately, be too narrow to help anyone besides me, but if we are successful, I’m told it will set a precedent that will be binding in the future and hopefully reform boorish behavior on the bench. That is, if angry leftists don’t take legislative steps in response to any court victory of ours to change the Illinois Religious Freedom Restoration Act, perhaps to gut it, or to once again single out marriage law as an exclusion. The Hobby Lobby decision this past summer thrilled us, but really riled up the liberal forces because they realize what upholding strong conscience protections will do to curb both the pro-abortion and the LGBT political agendas. Just wait til they get their wake-up call that the City of No-Fault is also under serious RFRA attack! A couple of my previous posts discuss RFRA and its implications for our cause of restoring balanced constitutional protections to marriage law.
For these reasons (narrowness of impact and the political vulnerability of RFRA in our liberal-dominated state), my strong preference is to “swing for the fences”, to supplement the religious freedom portion of our case with a simultaneous effort to persuade the court to look at Respondents as a “suspect class”, disfavored and treated with animus by the entrenched powerful interests against whom we are politically weak and are therefore stripped of a host of fundamental rights when we’ve done nothing to harm our marriages. I believe this would greatly bolster our 14th Amendment equal protection and due process arguments, and make any motivation to gut Illinois RFRA moot, with regard to our particular cause, at least.
Why does all this matter? In the case of religious freedom, New Mexico also had a RFRA, but unfortunately because their law excludes “laws of general applicability” from RFRA protections, it was self-defeating (not exactly sure what it actually purported to accomplish other than window-dressing). As a result, Elane Photography was told by a pompous, arrogant judge that checking her Christian convictions at the door was the price she had to pay as a citizen for the “privilege of being in business”. Hence, she would apply her unique artistic talent to the dignification of homosexual marriage ceremonies to which she is morally opposed, a form of forced speech which in other circumstances has been found to violate the 1st Amendment. The U.S. Supreme Court, unfortunately, concurred with New Mexico by declining to review, since a 1993 prior ruling set a precedent that made it much harder to apply the bare 1st Amendment religious freedom protections without an effective RFRA. It probably didn’t take liberal interests too long to figure out that a RFRA which excludes “laws of general applicability” works a heck of a lot better for them than one that is verbatim the Federal version, since this New Mexico decision came in approximately the same time frame as the Hobby Lobby decision.
With regard to equal protection and due process under the 14th Amendment, all of the prior constitutional challenges to the unilateral divorce law in various states failed because there was not yet sufficient case precedents to empower the courts to apply any higher standard than “rational basis” to the cases. Under this easy (sleazy) standard of review, all a state had to do is demonstrate that the law served a “legitimate” purpose, such as easing the cost of divorce on battered spouses, or ensuring that homemakers received a fair share of their employed spouse’s retirement if divorce was necessary. They didn’t have to prove that the law actually accomplished any particular objective, so bad laws could live on even if some disfavored group was negatively and unfairly impacted or if profound unintended consequences resulted for society as a whole.
Precedents and criteria for “heightened” review started to slowly build in 1976, but really started to escalate just in the last two years with the HHS mandate cases (such as Hobby Lobby), and with the homosexual marriage cases. Many of the latter have come over the summer of 2014 alone. I remember sitting in that downtown Chicago law office in early July and relating how I had been repeatedly denied due process in both of our trials. Both attorneys looked at me and said something to the effect of “Well, they gave you a day in court and let you present evidence, right?”
(To which I replied, “By that standard, Jesus received due process!” ) That’s what “rational basis” does to the due process rights of disfavored parties – it makes them evaporate.
Under intermediate or heightened scrutiny, it becomes possible to make the case that the law has not accomplished its purpose and that there were better options available that either were not considered or were rejected. Under heightened or strict scrutiny, we can start to argue that the state didn’t have a good enough reason to elevate the rights of one spouse over the fundamental rights of the other by excluding marital misconduct from the equation. Or that if they truly wanted, as they claimed, to stop “perjury collusion” in the case of two people who both wanted out of their marriage, it was neither rational nor necessary to impose unilateral divorce on everyone else, including contesting spouses who were morally opposed to divorce and had done absolutely nothing to harm their marriage or spouse.
It was well and good that I stood a pretty fair chance of prevailing on a religious discrimination argument. RFRA explicitly compels the application of strict scrutiny if I can prove that the law was compelling me to violate my deeply-held religious convictions. Since to preserve my dissipation claim, I was under pressure to agree that my marriage was “irretrievably broken”, was expected to have taken action to threaten divorce or actually file a divorce petition which would disobey God who only created marriage, not divorce. I was further expected to separate our finances, another violation of God’s prescribed order for the family roles. I think we can make that case of showing that the law significantly burdens my biblical convictions. That forces opposing counsel or the state of Illinois to prove that the state has a compelling interest in dismissing my dissipation claim for my failure to meet those expectations, which I doubt they can do. Whatever that compelling interest might purport to be, they then have to prove there wasn’t a less burdensome route to achieving that interest.
In the Hobby Lobby case, the U.S. Supreme Court skipped discussion of “compelling interest” and jumped straight to the obvious circumstance that there were many less restrictive means of achieving their aim of providing no-cost contraceptives and abortifacients to Hobby Lobby employees. So, I had to dig out another HHS case on a local pair of firms that had worked their way through the 7th Circuit to see a good definition of “compelling interest”. State appellate judges are influenced by but not bound by Federal court definitions, as I understand. In Korte v Sebelius, November, 2013, that Federal court described a compelling government interest as follows:
“only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion….only the gravest abuses endangering paramount interests give occasion for permissible limitation. The regulated conduct must pose some substantial threat to public safety, peace or order… Finally, a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited. “
It’s hard to imagine what could be said to convince the court that my conscience-based refusal to declare my marriage irretrievably broken or file for divorce or separate our finances was a “grave” abuse or that it threatened a state interest of the “paramount, highest order”, or posed a public threat of any sort. It did consume higher than average court resources, I suppose – but just whose fault is that? I neither asked to be in court, nor harmed my marriage or husband. Is it not more true that the exclusion of marital misconduct provision in the the law itself creates the appreciable damage to the state’s interest in conserving court resources?
As I said before, all of that was well and good, but as Kingdom-builder and as a taxpayer, I am still not satisfied! I believe the law discriminates just as badly against a disfavored and powerless class of people who may not hold any religious convictions at all, but hold moral convictions around the wholeness and integrity of their families. The contribution of unilateral divorce to the poverty rates is well enough documented that the National Organization of Women stood in formal opposition to the 2010 New York legislation that enacted unilateral divorce in the 50th U.S. state because of the proven harsh economic impacts on women and children. In other words, NOW recognized that UMDA (Uniform Marriage and Divorce Act) was not meeting its stated objectives after more than a 40 year run.
While many of the cases I’d been studying on equal protection and due process can be googled for free, as I became more serious about studying this myself, I learned that I could use a nearby university law library for free, much the way pioneer Judith Brumbaugh did 30 years ago in her fight against Florida’s unilateral divorce law. Attorney funds are low after spending almost $100,000 in trials, and I could get by well for myself by narrowly focusing the attorneys on my religious freedom relief valve, but as more Federal courts weighed in over the summer on fundamental rights, “suspect” classes, and levels of scrutiny, I was determined to learn more and try to do as much damage to this immoral law as one woman, who has been given a providential opportunity, can do. I realized I have the opportunity right now to inspire and empower people in other states, and expand the benefit of my efforts in my own state. As the power and move of God would have it, the summer drew to a close while some Federal judges were chastising folks I truly admire at various religious freedom legal ministries because their state government clients seem fine with unilateral divorce despite its proven toxicity to society and its corrosiveness to marriage as an institution. Amen!
I’m looking forward excitedly to working with as many religious freedom ministries as I can, though this particular cause is not politically popular with them. Not realizing they prefer to be contacted through attorneys, I contacted five of them on my own initiative several months ago when it looked apparent that the court was going to brutalize me over my strong religious objections to divorce, and an appeal, one that I might not have enough money to see through, was going to be unavoidable. I had a sense back then where God was taking this and why. Yet they all told me pretty much the same thing, that they “didn’t do family law” (- unless, of course, there happened to be homosexuality involved.) Never mind that I explained I already had a family law attorney and was merely looking for a constitutional specialist. They didn’t think my case was a true religious freedom case at its core. Any burden on my free exercise of religion was “only incidental”. I was so relieved that I was able to engage a constitutional religious freedom attorney with my own resources, and one whom these ministries regularly work with. Because this battle is the Lord’s, and the true weapons of our warfare must be spiritual weapons, I was so pleased to see the following clauses in their representation agreement:
Priority of Building the Kingdom: This representation is undertaken by Client and the Firm to build the Kingdom of God according to the teachings of Jesus and the Bible. Consequently, it shall be interpreted and performed with that objective.
(This blogger believes it’s not worth doing for any other goal or in any other spirit!)
Prayer: The parties shall pray for each other frequently. The Firm as a whole shall pray for Client monthly.
(Blogger is grateful beyond words.)
The next few weeks will have us going over trial transcripts and agreeing an approach to the appeal while meeting the various submission deadlines set by the appeals court. I related earlier how the Lord providentially supplied the funds I needed years in advance of the need, but actually as the attack on our marriage was starting. I’m now down to the “loaves and fishes”, but confident that God will continue to provide all our needs. That may include people as importantly as funds if my efforts are to benefit others. What if the Lord moves my prodigal husband to repentance before the appeal runs its course? Our case if not pursued with others as a class would become immediately moot, yet my highest priority would have to be my husband’s restoration to that Kingdom. His soul is on the line here! I covet the prayers of the saints that the Lord will have His way in everything.
Yet the Lord longs to be gracious to you;
therefore he will rise up to show you compassion.
For the Lord is a God of justice.
Blessed are all who wait for him!
– Isaiah 30: 18
Our Story: 7 Times Around the Jericho Wall – Part 1
Our Story: 7 Times Around the Jericho Wall- Part 2
No Day in Court for (Stander) “Jane Doe”, Our Story – Part 4
7 Times Around the Jericho Wall | Let’s Repeal No-Fault Divorce
www. standerinfamilycourt.com