By David Tulis
The federal high court’s endorsement of “gay marriage” puts a spotlight on a caprice of the modern state. Namely, its asserted authority to redefine words and concepts and to make things that are evil a good and accepted practice.
Tennessee has taken control of marriage through Title 36 of its Tennessee Code Annotated, and has created a statutory system in which Tennesseans exercise their rights to form marital unions. But some states, such as Alabama, have been more careful not to offend the rights of the people. Alabama has not refused to recognize its people’s right to marry under common law, under their creational rights. Tennessee, for its part, refuses recognition of such unions. Despite its hubris in purporting to monopolize and control marriage, Tennessee recognizes common law marriages contracted elsewhere.
[I bring this revised May 2012 essay updated to account for the federal supreme court opinion Obergefell v. Hodges in June 2015. — DJT]
The only sort of marriage a homosexual can contract is under statutory law.
Let that sink in. The only sort of law system a homosexual couple can enter into is that written by a state legislature or imposed (we are to believe) by a federal court.
American common law, which in many areas has been set aside by states’ writing their own codes, envisions marriage only as between a man and a woman. No homosexual can marry under common law. Only men and women can enjoy the fruits of marriage, exercised as a right, under common law and its North Carolinian,‡ English, ancient and biblical precedents.
Tennessee has seized marriage
Tennessee’s law provides a control of parties entering marriage. It prohibits marriage to one who is drunk, insane or an imbecile. It requires a waiting period for some under license. It relates duties of the clerk. Contradicting the Obergefell opinion, it holds marriage to be the exclusive provenance of a man and woman. As statute puts it:
Tennessee’s marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage. (TCA 36-3-113)
The statute reflects the people’s 2004 amendment to the constitution (section 18) that makes “void and unenforceable” a marital contract between, say, two men in New York who move to Tennessee. The Obergefell opinion is said to have voided and nullified any of these provisions that assume marriage is between one man and one woman. State officialdom — from Gov. Bill Haslam on down to Hamilton County clerk Bill Knowles — has capitulated to this presumption.
State law doesn’t seem rigorous in the details for marriage under statue. Any number of people are allowed to “solemnize” a marriage, from judge to county mayor. The rules require capacity and consent of the parties. They require no formula of words for a couple other than that they “shall respectively declare, in the presence of the minister or officer, that they accept each other as husband and/or wife.” The minister or officer is required to return the license after the ceremony, signed.
The first iteration of Tennessee’s marriage licensing regime was in 1741. A second was in 1858 when the General Assembly abrogated the common law for marriage and created a protocol to regulate marriages among races at a time with race-mixing was deemed a public evil. The Tennessee constitution once forbade racial intermarriage, but that provision is repealed.
Marriage is part of creation
Marriage is part of the human order of creation, with Adam having been given Eve as his lawful wife without any witnesses or any ceremony. The scriptures discuss marriage, its duties and joys, and protect it under the seventh commandment requiring sexual purity (“Thou shalt not commit adultery.”) The confessions of Christendom have consistently held the marriage is a covenant made before God by man and woman, and that it is for life. Jesus Christ allowed for divorce because of the hardness of his listeners’ hearts, but insists God doesn’t mean for that to be.
A marriage license, according to the 1968 edition of Black’s Law Dictionary, gives permission for people to “intermarry.” The more establishmentarian 2004 edition of Black’s says a marriage license “grants a couple permission to marry.” Whenever a state creates a regulatory and licensing apparatus for any ostensible public benefit, it declares illegal and unlawful by default the activity it proposes to regulate, such as marriage. It affords petitioners a privilege of being able to perform that illegal act.
By general definition, a license is permission to do that which is otherwise unlawful or illegal. In the marriage question, the state arrogates to itself the authority to make all unions illegal. It does so inexplicably and by sleight of hand. And then, suddenly, it makes them legal again, but under permission.
All 50 states have licensing regimes, though at least 10 states, including Alabama, recognize couples’ exercise of the covenant of marriage as a fundamental right.Tennessee claimed a great power by taking ownership of marriage in the first place, though its power has been made more wholesome by the marriage amendment revision that refuses recognition of any homosexual right to wed.
Is it fair to say that Tennessee forbids common law marriage, or simply does not recognize it? The U.S Supreme Court in Meister v. Moore 96 US 76 (1877) held that, “As before remarked, the statutes are held merely directory; because marriage is a thing of common right*** ” [emphasis added]
The word “directory” refers to a provision of a law or rule that is merely directive, or instructive and of no obligatory force and involving no invalidating consequence for its disregard, according to Black’s. In Meister, the court dealt with statues in Massachusetts and Michigan that purported to render invalid marriages not entered into under the terms of statute.
You and your children have a God-given right to marry, one that preceded the federal government and the state of Tennessee perhaps by 6,000 years. It is fair to say marriage is beyond their authority or purview to infringe upon fundamental rights. Marriage belongs to your sons and daughters by common right. Tennessee doesn’t say a common law marriage is illegal, ‡‡ unlawful or a crime. It is just not recognized.
I won’t discuss today an important reservation I have about statutory marriage that very possibly affects your jurisdiction over the issue of such marriage, namely the fruit, the offspring. Marrying under statute creates a three-party union, with the state the most powerful party, as it is the moving party, the enabling party bringing man and woman together. Licensure puts the union into commerce. The Times Free Press recognizes this suggestion by publishing marriage licenses in the business section every week. Children of such unions may emerge under a legal cloud, a sort of lien on their persons, their estates and their labor. In statutory marriage, only the state can dissolve the union through divorce proceedings, as the union is its property. I leave this matter aside for now.
Common law marriage — strikingly ordinary
But pretend for a moment you might want to marry at common law. What are some considerations for Tennesseans?The families must solemnize the contract on freer soil. Alabama is friendly to such aims.
It could be a parking lot of a convenience store or a Piggly Wiggly. But you want a cultivated event, with class. So you could inquire at the first church south of the state line in Bridgeport, Ala., the Rocky Springs Church of Christ on County Road 574 (I was not been able to reach anyone there by phone today, but have sent a letter of inquiry about the fellowship’s requirements for rental of facilities). You could inquire of others of our own choosing.
Solemnization is a public event where the parties declare themselves before witnesses. Solemnization isn’t strictly required, but it helps establish intent to wed, a legally crucial element in a lawful marriage. Have witnesses, have a video made of the vows, sign a brief marital contract written up and signed before two or three witnesses before or just after the nuptials. A notary’s stamp on that document wouldn’t hurt
Sources: Tennessee Jurisprudence; http://www.originalintent.org/edu/marriage.php ;
‡ Tennessee took on common law when it was carved out of North Carolina. Tennessee’s common law heritage rises from English law and American colonial law during and prior to the first war for independence.
‡‡ I may be going too far in this claim. According to TennJur, Sanders v. Altmeyer 58, F Supp. 67 (W.D. Tenn., 1944) says common law contracted in Tennessee marriage is illegal, but I couldn’t get to reading the case today.
Jeannette and I married in Huntsville, Ala., under statute. I had researched this issue sufficiently convinced I wanted to marry her at common law in that state, but we had already arranged to have the Revs. Peter Doyle and Peter Leithart preach the ceremony, and one of them said he was not open to my proposal to dodge a state entanglement. To avoid roiling family and creating controversy, I elected to proceed under statute.