I thought I would pass on this post. I thoght it was a good read
How Did Gov't Get Involved in "Marriage",
a Matter of Religious Tradition?
From: "Virgil Cooper"
ultrac21@whitemtns.com
Sent: Saturday, February 21, 2004 1:04
About 15 years ago, my former wife of 26-1/2 years, filed for divorce.
We had seven children, five daughters and two sons. Our youngest at
the time, our second son, was five years old.
At the time, I prepared a counterclaim to the Petition for Dissolution
her attorney filed in Domestic Relations (DR) court. I met one
afternoon with the head of the Maricopa County Superior Court, Marriage
License Bureau, in downtown Phoenix. The marriage license bureau was
headed by a young woman of about age 25. I asked her to explain to me
the general and statutory implications of the marriage license. She
was very cooperative, and called in an Assistant, a tall Black man who
at the time was working on an Operations Manual for internal
departmental use.
She deferred for most technical explanations to her Assistant. He
walked through the technicalities of the marriage license as it operates
in Arizona. He mentioned that marriage licensing is pretty much the
same in the other states -- but there are differences. One significant
difference he mentioned was that Arizona is one of eight western states
that are Community Property states. The other states are Common Law
states, including Utah, with the exception of Lousiana which is a
Napoleonic Code state.
He then explained some of the technicalities of the marriage license.
He said, first of all, the marriage license is Secular Contract between
the parties and the State. The State is the principal party in that
Secular Contract. The husband and wife are secondary or inferior
parties. The Secular Contract is a three-way contract between the
State, as Principal, and the husband and wife as the other two legs of
the Contract. He said, in the traditional sense a marriage is a
covenant between the husband and wife and God. But in the Secular
Contract with the state, reference to God is a dotted line, and not
officially considered included in the Secular Contract at all. He
said, if the husband and wife wish to include God as a party in their
marriage, that is a "dotted line" they will have to add in their own
minds. The state's marriage license is "strictly secular," he said.
He said further, that what he meant by the relationship to God being a
"dotted line" meant that the State regards any mention of God as
irrelevant, even meaningless. In his description of the marriage
license contract, the related one other "dotted line." He said in the
traditional religious context, marriage was a covenant between the
husband and wife and God with husband and wife joined as one. This is
not the case in the secular realm of the state's marriage license
contract. The State is the Principal or dominant party. The husband
and wife are merely contractually "joined" as business partners, not in
any religious union. They may even be considered, he said, connected
to each other by another "dotted line." The picture he was trying to
"paint" was that of a triangle with the State at the top and a solid
line extending from the apex, the State, down the left side to the
husband, and a separate solid line extending down the right side to the
wife, a "dotted line" merely showing that they consider themselves to
have entered into a religious union of some sort that is irrrelevant to
the State. He further mentioned that this "religious overtone" is
recognized by the State by requiring that the marriage must be
solemnized either by a state official or by a minister of religion that
has been "deputized" by the State to perform the marriage ceremony and
make a return of the signed and executed marriage license to the
State. Again, he emphasized that marriage is a strictily secular
relationship so far as the State is concerned and because it is looked
upon as a "privileged business enterprise" various tax advantages and
other political privileges have become attached to the marriage license
contract that have nothing at all to do with marriage as a religious
covenant or bond between God and a man and a woman.
By way of reference, if you would like to read a legal treatise on
marriage, one of the best is "Principles of Community Property," by
William Defuniak. At the outset, he explains that Community Property
law decends from Roman Civil Law through the Spanish Codes, 600 A.D.,
written by the Spanish jurisconsults. In the civil law, the marriage is
considered to be a for-profit venture or profit-making venture (even
though it may never actually produce a profit in operation) and as the
wife goes out to the local market to purchase food stuffs and other
supplies for the marriage household, she is replenishing the stocks of
the business. To restate: In the civil law, the marriage is considered
to be a business venture, that is, a for-profit business venture.
Moreover, as children come into the marriage household, the business
venture is considered to have "borne fruit."
Now, back to the explanation by the Maricopa County Superior Court,
Marriage Bureau's administrative Assistant. He went on to explain that
every contract must have consideration. The State offers consideration
in the form of the actual license itself -- the piece of paper, the
Certificate of Marriage. The other part of consideration by the State
is "the privilege to be regulated by statute." He added that this
privilege to be regulated by statute includes all related statutes, and
all court cases as they are ruled on by the courts, and all statutes and
regulations into the future in the years following the commencement of
the marriage. He said in a way the marriage license contract is a
dynamic or flexible, ever-changing contract as time goes along -- even
though the husband and wife didn't realize that. My thought on this is
can it really be considered a true contract as one becomes aware of the
failure by the State to make full disclosure of the terms and
conditions. A contract must be entered into knowingly, intelligently,
intentionally, and with fully informed consent. Otherwise, technically
there is no contract. Another way to look as the marriage license
contract with the State is as a contract of adhesion, a contract between
two disparate, unequal parties. Again, a flawed "contract." Such a
contract with the State is said to be a "specific performance" contract
as to the privileges, duties and responsibilities that attach.
