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
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.”