Marital Contract at Common Law Recording Act

happy newly married husband and wife

Marriage Is God-Given

There is a way to bring marriage back to God’s definition—between a man and a woman—in the state of Tennessee through a key piece of legislation and a massive educational initiative. The initiative is called God-Given Marriage and the key legislation is the Marital Contract at Common Law Recording Act (MCCLRA).

Bill Filings

ON February 4, 2020, Rep. Tom Leatherwood filed the House bill, HB 2310, and Sen. Janice Bowling filed the Senate bill, SB 2290.

Understanding the Reason for the Bill

The Marital Contract at Common Law Recording Act (MCCLRA) addresses the problems created by the U.S. Supreme Court’s decision regarding the unconstitutionality of state male-female marriage licensing statutes (Obergefell v. Hodges, 2015) and this never enjoined but ignored provision in Tennessee’s Constitution that says,

Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution [think “common law’] and legal contract between one man and one woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. 

Because of SCOTUS’ decision, the state cannot license a marriage without defining marriage as any two people regardless of their biological sex. Because of the state’s constitution, the state cannot enact a law to issue a license that defines marriage “as anything other than” a man and a woman.

MCCLRA solves this “rock and hard place” problem by repealing the marriage licensing statutes. But that does not leave Tennessee without marriage, since marriage didn’t come from the government anyway.

MCCLRA is based on the fact that people entered into a marital relationship before there were any such things as “marriage licenses” and that the marital relationship between a man and a woman was part of the common law—unwritten “laws” based on historical development and understanding proved by experience and confirmed in its conclusions by natural law and revelation to those who believe in them. Thus, the marital relation between a man and a woman was protected and recognized by courts as a form of contract, a “marital contract.”

This common law understanding of marriage is exactly the understanding of marriage the people of Tennessee overwhelmingly adopted and put into Tennessee’s Constitution!

To allow a man and woman to give evidence of their marriage to the government, the public, employers, banks, and so on, MCCLRA allows them to record a document at the county courthouse that states the fact that they are married. The document, though, is not what “marries” them, and thus, the law does not violate Obergefell. And the document is in line with Tennessee’s Constitution.

Professor Adam MacLeod, a nationally recognized expert in common law, wrote an opinion letter last March regarding MCCLRA, saying, as follows:

When the Supreme Court of the United States decided in Obergefell v. Hodges that states must extend the status of civil marriage—a status generated by a state’s positive laws—to same-sex couples, the Court expressly bracketed and set aside as irrelevant its jurisprudence concerning those fundamental rights and duties that are found in the common law, what the majority called “history and tradition.” . . . Therefore, the holding and reasoning of Obergefell do not bear upon the provisions of this bill that declare marriage in its natural, common-law contours and allow for recording of marriages. . . . The MCCLRA’s proposal to employ official recording of marriage contracts is sound. . . . [I]ts analog, the public recording of instruments concerning title in real property [Deeds], has a long and well-documented history of success.

Law professor John Eastman, former clerk to Justice Clarence Thomas, said:

I fully agree that the Obergefell decision certainly does not conclusively control the issue and that there is a legitimate basis upon which its constitutionality could be defended. . . . The Common Law Recording Act you have proposed is just the kind of development in the law that should force the Court to reconsider its prior views. . . . I applaud Tennessee for contemplating a legislative strategy that will reassert the right of the people to govern themselves on such a vital question as the very definition of marriage.

Understanding the Mechanics of the Bill

The “Marital Contract at Common Law Recording Act” or “MCCLRA” would restore to a man and woman their God-given right to marry as a husband and wife, not just as “spouses.”

Currently, that right has been barred by statutes that require a state license in order for there to be a legally recognized marriage and, according to Tennessee’s attorney general, our law now says male and female is irrelevant to the definition and meaning of a legal marriage.

This kind of sex-neutral marriage is the only kind a man and woman can now have in Tennessee unless they are allowed to marry under the definition of marriage under our nation’s common law tradition of recognizing relationships and rights related thereto that precede any kind of relationship or right created by legislative enactments or judicial pronouncements.

The U.S. Supreme Court has held that the “right to marry” is not a right conferred by government, and Obergefell did not repudiate that holding. This natural right is exactly the kind of right not expressly enumerated in the U.S. Constitution that was “retained by the people” by the Ninth Amendment.

Under MCCLRA, a man and a woman of legal age and sound mind would be treated as having a marital relationship if they can prove that they declared to each other their intention to be married and thereafter held themselves out to the public as married.

The bill would repeal the current marriage licensure statutes and the new law would:
  • Allow a man and woman only to file a document with their local county clerk noting for the public the existence of their marriage, but no document evidencing the fact of the marriage must be filed in order for the marriage to be valid if it is proved by other means. This filing mirrors the current practice with the county clerk, but for a different reason—giving notice of one’s marriage, not getting the state’s permission to marry.
  • Require the county clerk to forward a record of all marriage documents filed with the clerk to the state’s office of vital records, again mirroring what happens now with the state’s certificates of marriage.
  • NOT require any license or permission from the state in order for a man and woman to marry.
Ministers could still solemnize marriages, but as ministers, not as authorized agents of the state as is currently the case. Thus, there would be no legal basis upon which a minister could be compelled by a court to solemnize a marriage between two people of the same sex.

Ministers would no longer have to sign a license or the state’s certificate of marriage.

Constitutionality of the Bill

The U.S. Supreme Court has expressly held that states can recognize non-licensed marriages, and eight states still have both licensed and non-licensed marriages. The IRS and U.S. Department of Labor recognize non-licensed marriages.

Furthermore, because the U.S. Supreme Court has held that marriage is a “right” that exists independent of government statutes, it should be protected by the Ninth Amendment, which says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

For the U.S. Supreme Court to hold that MCCLRA violates the U.S. Constitution, it will have to reverse prior precedent regarding common law marriage and render the Ninth Amendment meaningless.

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