How Did Gov't Get Involved in "Marriage"
Virgil Cooper
How Did Gov't Get Involved in "Marriage"
Sun Feb 29 14:01:56 2004
64.140.158.106

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.

Consideration on the part of the husband and wife is the actual fee paid
and the implied agreement to be subject to the state's statutes, rules,
and regulations and all court cases ruled on related to marriage law,
family law, children, and property. He emphasized that this contractual
consideration by the bride and groom places them in a definite and
defined-by-law position inferior and subject to the State. He
commented that very few people realize this. He also said that it is
very important to understand that children born to the marriage are
considered by law as "the contract bearing fruit" -- meaning the
children primarily belong to the State, even though the law never comes
out and says so in so many words.

In this regard, children born to the contract regarded as "the contract
bearing fruit," he said it is vitally important for parents to
understand two doctrines that became established in the United States
during the 1930s. The first is the Doctrine of Parens Patriae. The
second is the Doctrine of In Loco Parentis. Parens Patriae means
literally "the parent of the country" or to state it more bluntly -- the
State is the undisclosed true parent. Along this line, a 1930s Arizona
Supreme Court case states that parents have no property right in their
children, and have custody of their children during good behavior at the
sufferance of the State. This means that parents may raise their
children and maintain custody of their children as long as they don't
offend the State, but if they in some manner displease the State, the
State can step in at any time and exercise its superior status and take
custody and control of its children -- the parents are only conditional
caretakers.

He also added a few more technical details. The marriage license is an
ongoing contractual relationship with the State. Technically, the
marriage license is a business license allowing the husband and wife, in
the name of the marriage, to enter into contracts with third parties and
contract mortgages and debts. They can get car loans, home mortgages,
and installment debts in the name of the marriage because it is not only
a secular enterprise, but it is looked upon by the State as a privileged
business enterprise as well as a for-profit business enterprise. The
marriage contract acquires property throughout its existence and over
time, it is hoped, increases in value. Also, the marriage contract
"bears fruit" by adding children. If sometime later, the marriage
fails, and a "divorce" results the contract continues in existence.
The "divorce" is merely a contractual dissolution or amendment of the
terms and conditions of the contract. Jurisdiction of the State over
the marriage, over the husband and wife, now separated, continues and
continues over all aspects of the marriage, over marital property and
over children brought into the marriage. That is why family law and the
Domestic Relations court calls "divorce" a dissolution of the marriage
because the contract continues in operation but in amended or modified
form. He also pointed out that the marriage license contract is one of
the strongest, most binding contractual relationships the States has on
people

At the end of our hour-long meeting, I somewhat humorously asked if
other people had come in and asked the questions I was asking? The
Assistant replied that in the several years he had worked there, he was
not aware of anyone else asking these questions. He added that he was
very glad to see someone interested in the legal implications of the
marriage license and the contractual relationship it creates with the
State. His boss, the young woman Marriage Bureau department head
stated, "You have to understand that people who come in here to get a
marriage license are in heat. The last thing they want to know is
technical, legal and statutory implications of the marriage license."
(Laughter)

I hope this is helpful information to anyone interested in getting more
familiar with the contractual implications of the marriage license.
The marriage license as we know it didn't come into existence until
after the Civil War and didn't become standard practice in all the
states until after 1900, becoming firmly established by 1920. In
effect, the states or governments appropriated or usurped control of
marriages in secular form and in the process declared Common Law
applicable to marriages "abrogated."

Please pass this information along and share it as widely as possible.

Best regards from Virgil Cooper
 

 

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