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.