Marital Contract Recording Act

happy newly married husband and wife

Marriage Is God-Given

There is a way to bring marriage in Tennessee back to God’s definition—between a man and a woman—through enactment of Senate Bill 562/House Bill 233, known as the Marital Contract Recording Act (MCRA).

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 Recording Act (MCRA) addresses problems created by the U.S. Supreme Court’s decision regarding the state male-female marriage licensing schemes and the way the state of Tennessee has been administering it male-female marriage licensing statutes since Obergefell v. Hodges in 2015. 
 
No state official has ever been prohibited by federal court order from adhering to this provision in Tennessee’s Constitution in regard to the administration of the marriage licensing law for Tennessee residents:

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. 


Nevertheless, state and local officials have administered the license law as if the legislature had amended it to delete the requirement that applicants for a license be a “male and female.” But that creates a problem for people who believe marriage is defined exclusively and exhaustively in terms of male and female as husband and wife.

The Problem Officials Have Created for Certain Male and Female Couples
 
Couples can get a license for a marriage defined without regard to sex, but a man and woman cannot get a license for a marriage defined exclusively and exhaustively in terms of man and woman.

The state has created a new kind of relationship it still calls “marriage,” and the only license available for this new kind of marital relationship. But the new kind is for any two people, which is a wholly different thing from a marriage defined exclusively and exhaustively as a man and woman. In fact, the way officials are interpreting the law, they have  abolished the concept of marriage defined exclusively and exhaustively in terms of man and woman as husband and wife.

Think of it like this. The way the law is being interpreted is akin to our elected officials saying, “Triangles are geometric objects that can have more than three sides. But we are not changing the definition of a triangle. We are just ‘expanding’ what is ‘eligible’ to be called a triangle.” 

We would all know this is pure spin! Whatever that geometric “thing” would now be, it is not a triangle because, by definition, a triangle cannot have but three sides. Triangles are defined exclusively and exhaustively as a geometric shape composed of only three lines. Similarly, a marriage that can be defined as made up of persons other than a man and woman is not a marriage defined as a man and woman.

The Problem Officials Have Created for Certain Ministers

This creates a particular problem for ministers who believe God has defined marriage exclusively and exhaustively as a man and woman and want to solemnize a marriage for a couple who believe the same way. The minister can solemnize the marriage, but unless the minister signs the license and state certificate of marriage and files them with the county clerk, thereby certifying the marriage was according to state law’s understanding of marriage, then Tennessee will give no public recognition of the marital relationship! None. 

How the MCRA solves These Two Problems 
 
MCRA will solve this “rock and hard place” problem for couples who want to enter into a marital relationship defined exclusively and exhaustively as husband and wife. It solves the problem by adding a provision to the state’s statutory law by which County Clerks can accept for filing a document evidencing the fact that the man and woman have entered into a husband and wife marital relationship. The document is a means by which a husband and wife can provide notice to the public of their marital relationship. 
 
MCRA will also solve the “rock and hard place” problem or ministers, because they will not have to sign the record of the marriage that the husband and wife will file.

A Helpful Analogy to Understanding the Act
 
Think of buying and selling one’s home and recording a deed and you will have the picture. Persons wanting to sell and buy a home do not have to get a license to do so. As long as a court would say the parties had the legal capacity to enter into a contract and no fraud or misrepresentation was committed, the contract would be upheld. But the parties to the real estate contract provide proof of the contract and its completion by filing a deed. 
 
The record of the marital contract serves the same role as a deed in a real estate contract. It’s simple to understand, and we’ve been doing real estate contracts like this for decades without a problem.

In sum, MCRA 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, what the common and the Tennessee Constitution call a “marital contract.”

Understanding the Mechanics of the Bill

The “Marital Contract Recording Act” or “MCRA” 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 MCRA, 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 add provisions to the current marriage licensure statutes, and the new law  that 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, ministers would not have to sign forms that state officials treat as though the law defines marriage as a relationship between any two people.
 
By solemnizing only these non-licensed kinds of marriage, there would never be any legal basis upon which a minister could be compelled by a court to solemnize a marriage between two people of the same sex, because the marriages they will be solemnizing under the new law are outside the government’s licensing scheme. They will not be bringing themselves under the existing license law.

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 MCRA 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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