Marital Contract Recording Act

Senate Bill 562/House Bill 233

The Marital Contract Recording Act allows a man and woman who have exchanged marital vows or promises to file with the local county clerk a document recording the fact that they have married. 

The Act is based on the fact that the relationship of a man and woman as husband and wife is not created by an act of the state legislature through licensure. Moreover, the right of a man and woman to enter into this particular kind of relationship is not based on a grant of permission given them by the legislature.

To picture what the Act does, picture a real estate contract between two people for the sale and purchase of a home and the subsequent recording of the deed to evidence the contract. If you can picture that, then you know how the Marital Contract Recording Act works. 

What can I do to support the Act?

 
If you would like for your pastor or minister to understand what the Marital Contract Recording Act is about and why it is needed, click here to access our “Pastoral Messaging Memo.” Email the link to your minister or pastor or download the Memo and mail or hand-deliver it.

If you would like to make sure your state legislators understand why it is important that he or she vote for the Marital Contract Recording Act, click here to access our “Legislator Messaging Memo.” You can email the link to your legislator with a request that he or she vote for it or download, print, and mail the Memo with a note requesting that he or she vote for the Act.
 

WHY IS THE ACT NEEDED?


The Marital Contract Recording Act (MCRA) addresses problems created by the way the state of Tennessee has been administering its 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 statutes, T.C. A. § 36-3-104(a) 
 

(a) No county clerk or deputy clerk shall issue a marriage license until the applicants make an application in writing, stating the names, ages, addresses and social security numbers of both the proposed male and female contracting parties and the names and addresses of the parents, guardian or next of kin of both parties. 


Despite the fact that no court has ever ordered the state to stop complying with the statute and the legislature has never changed it, state and local officials have unconstitutionally administered the statute as if the legislature had amended it to delete the requirement that applicants for a license be a “male and female.” 
 
But the way the law is now being interpreted by the governor and county clerks creates a problem for people who believe marriage is a kind of reality defined exclusively and exhaustively in terms of the union of male and female as husband and wife. Belief in such realities is pervasive. For example, the meaning we ascribe to any thing, even sexual acts, is more than the thing itself.

At this link you can see what the state’s Certificate of Marriage looked like prior to the Obergefell decision and how it now reads. It will be apparent that the state has eliminated the exclusivity of male and female as husband and wife. 
 
The problem created for couples. 

Couples can get a license for a marriage state officials treat as one 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. For them, the state has created a new relationship it still calls “marriage,” but it is a wholly different kind of relationship from a marriage defined exclusively and exhaustively in terms of a man and woman. In fact, the way the law is being administered abolishes 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 and administered is akin to our elected officials now saying, “Triangles are geometric objects that can have more than three sides.” 
 
We would know that they are not changing the definition of a triangle, but are merely calling this new three-or-more-sides geometric shape a triangle. We would know they are not just ‘expanding’ what is ‘eligible’ to be called a triangle.

Whatever that new geometric “thing” is, 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, if what is called a marriage that can be made up of persons other than a man and woman is not a marriage defined exclusively and exhaustively as a man and woman.
 
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. 

The problem created for ministers.

This also creates a 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, because of T.C. A. § 36-3-104(a), Tennessee will give no public recognition of the marital relationship unless the minister signs the license and state certificate of marriage and files them with the county clerk. But, by signing, the minister is certifying that the marriage was according to an understanding of marriage that eliminates the exclusivity of male and female as husband and wife!  
 
MCCRA will also solve the “rock and hard place” problem for ministers, because they will not have to sign the state license or Certificate of Marriage nor will they have to sign the record of the marriage that the husband and wife will file.

IS THERE ANY PRECEDENT FOR THIS KIND OF THING FOR MARRIAGE?


Yes. The United States Supreme Court, even after adoption of the Fourteenth Amendment, acknowledged the legitimacy and history in America of exactly what the Act does: “Statutes in many of the States, it is true, regulate the mode of entering into the contract regulate the mode of entering into the contract, but they do not confer the right.”  In other words, the right to marry is not granted by the statutes.” Why? Because the husband-and-wife marital relationship was not created by statute either!
 
Similarly, the Act does not create the marriage, the two consenting adults do! Just as a deed does not create the underlying real estate contract that would be enforced in a court of law,, the marital record document does not create the marriage.
 
Essentially, the Marital Contract Recording Act allows the state and others to know whether a man and woman have entered into a husband and wife relation by the filing of the record by the couple. Just as the law spells out what must go in a real estate did for it to be acceptable for filing, the Act sets out what is needed in the marital record document.  
 
Married couples should file the record so that they don’t have trouble proving to third parties, perhaps years later, that they are in fact married. It is the very same reason deeds are always filed.—to provide proof that the underlying real estate contract was created and performed and who now owns the property.
 
Here are some questions you might have.
 

Has this ever been done before?


Yes. In fact, this was the very purpose of marriage statutes in our country for the first 100 years or so. The United States Supreme Court described this very kind of thing in its post-Fourteenth Amendment decision in Meister v. Moore (1887):
 

Marriage is everywhere regarded as a civil contract. Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do not confer the right. . . . In most cases, the leading purpose is to secure a registration of marriages, and evidence by which marriages may be proved; for example, by certificate of a clergyman or magistrate, or by an exemplification of the registry. . . . [I]n the absence of any provision declaring marriages not celebrated in a prescribed manner, or between parties of certain ages, absolutely void, it is held that all marriages regularly made according to the common law are valid and binding,


You will notice that the Supreme Court's description of the husband-wife marital relationship is remarkably similar to the way the marital relationship is described in Article XI, section 18 of the Tennessee Constitution: “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state."
 

Didn’t the U.S. Supreme Court make this kind of law unconstitutional?

 
No. In 2015, in Obergefell v. Hodges, the United States Supreme Court held that the marriage licensing statutes in certain states (Kentucky, Michigan, and Ohio) could not be enforced by state or local officials because a license was required for two people to marry and the statutes only authorized the issuance of licenses to a man and woman.  
 
That decision has nothing to do with the Marital Contract Recording Act. First, the Act does not repeal or alter in any way the state’s existing marriage licensing statutes so it cannot run afoul of the holding in Obergefell. Second, the state is not granting a right or privilege by statute and controlled or limited by statute to anyone to do anything that they did not already have a right to do before there were any licensing statutes (or even before there was a Constitution!) Third, the Act is in accord with the understanding of the common law marital relationship described in the Meister decision. Fourth, the Act does not change any benefits to which any lawfully married couple is already entitled or provide any new or additional benefits to a man and woman who choose to record their marriage.
 

Where can I get more information about the constitutional basis for the Act?

 
More information can be found, including opinions of legal scholars and explanations of the decision in Obergefell v. Hodges at GodGivenMarriage.com.

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