Wild Tennessee case: Marriage at ‘very foundation of social order, morality’

Michael Murphy of Chattanooga proposes to his sweetheart, Olivia Wyatt, on Lookout Mountain. The couple met at Lee University in Cleveland, Tenn., and were wed Sept. 21.

By David Tulis

For local economy to prosper, we Chattanoogans need to live out underlying truths that make up Western civilization. More than any other system of thought or life, Christianity has informed the world in which we live, whether giving rise to science, invention, industry or academic pursuits such as physics, according to Vishal Mangalwadi, India’s greatest Christian intellectual whose latest book was published out of Nashville.‡

Living out the promises of God by his creational pattern and in terms of his commandments gives people in my hometown and yours a real prospect for growth and longevity. One great promise of God is marriage, the loving and promise-filled relationship between a man and his wife that mirrors Christ’s love of His people, for whom He sacrificed Himself. To the home come children, the seed of the future; children are the framework of yet other houses, of future neighborhoods, cities in the beyond.

Marriage is under attack by people who know better than God how His creation is ordered. Fierce arguments against marriage were made in oral arguments before the federal supreme court recently. The grittiest  smackdown of marriage since the Washington, D.C., hearings are comments made by Masha Gessen, a journalist and a homosexual.

“It’s a no-brainer that (homosexual activists) should have the right to marry, but I also think equally that it’s a no-brainer that the institution of marriage should not exist,” she says in a radio interview. “[F]ighting for gay marriage generally involves lying about what we are going to do with marriage when we get there — because we lie that the institution of marriage is not going to change, and that is a lie. The institution of marriage is going to change, and it should change. And again, I don’t think it should exist. And I don’t like taking part in creating fictions about my life. That’s sort of not what I had in mind when I came out thirty years ago” (italics are mine).

The admission of lying by the homosexual lobby is noteworthy, but not surprising. Its members’ effort is a bold  assault on creation and on God, who ordained the marital union  as part of a most pleasing natural order. As against the desire espoused by ideologues to end the institution of marriage, marriage in Tennessee is defined in a famous case whose premises should be understood as standing — regardless how the U.S. supreme court rules in the next months.‡‡

The Tennessee case is about a woman who entered into a seemingly sham marriage with a drunken dirtbag to avoid claims against her deceased husband’s estate by a creditor. The widow’s sole purpose in entering the marriage was to defeat her creditors. The case McKinney vs. Clarke rose out of a chancery court case in Fayetteville, Tenn., in 1852 and tells about the legal underpinnings of the united state.

A husband ‘loathsome in appearance and habits’

The story as recounted by the judges is pathetic. Mrs. Clarke, a widow named Sullivan, lived under terms of a will that gave her a plantation and six slaves “during her natural life or widowhood,” with remainder to her children. But she ran into financial trouble and borrowed. Her troubles did not end with the loans. In seeking payment, the lender Mr. McKinney won several judgments against Mrs. Sullivan. To force the passage of the estate to the Sullivan children and avoid losing land and slaves to the creditor, Mrs. Sullivan married Mr. Clarke.

Mr. Clarke was a remarkable man, a “drunken sot, degraded in reputation and loathsome in appearance and habits.” Judge McKinney, in his opinion, decries the marriage. “The motives and conduct of said Mary, in forming this matrimonial alliance, are of a character, as exhibited in this record, to shock the moral sense of the community, and to outrage all the decencies of social life. It is probable from the proof, that she has not, in fact, and perhaps never intended to co-habit with said Clarke,” whom he proceeds to describe as a disaster of a man. (He may even have been a black, as the record says Mrs. Clarke “intermarried” with the defendant in the case.)

The goal of the plaintiff was to have the judges undo the marriage. A chancery judge agreed and annulled the marriage. The facts of the case “leave no doubt upon the mind that the object of the marriage was to defeat the rights of the complainant.” It was a marriage of convenience with no intention of the parties to cohabit and enjoy a married life together.

The issue before the court is what is marriage, how inviolable is it, how unique is it among the world of agreements, contracts, covenants and deals.

‘An institution of society’

Quoting a footnote from Mr. Story, the ruling says marriage “is something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view has some peculiarities in its nature, character, operation, and extent of obligation, different from what belong to ordinary contracts.”

Unlike other contracts, it is indissoluble between the parties. When consummated according to law, it is of perpetual obligation, and cannot be renounced at the will of either or of both parties. It continues to exist until a dissolution is produced either by the death of one of the parties, or by a divorce. [citations omitted] It differs in another respect from all other contracts; the rights and duties growing out of it, are not left to the option or agreement of the parties; but, to some extent, are matters of municipal regulation, over which the will of the parties can have no control. It continues to subsist in full force, even although one of the parties should be rendered incapable forever of performing his or her part of the mutual contract, as in case of incurable insanity, or the like.

Such is the nature of the contract of marriage; an institution which lies at the very foundation of all social order and morality,  and constitutes the chief corner stone of the whole structure of civilized society.

The contract of marriage, then, having its foundation in nature, and resting, in its origin, upon the mere consent and mutual agreement of the parties, when complete according to civil regulations, becomes indissoluble, except by death or divorce; and so long as the relation is acquiesced in by the immediate parties, no tribunal on earth is clothed with the jurisdiction to interpose to annul it. No more startling or absurd proposition can be conceived, than that a marriage, legal in form, acquiesced in and held obligatory by the parties, and recognized as valid by law, might be annulled at the instance of a third person, for any cause whatever. So far as regards the legal consequences resulting from marriage, either as respects the parties or third persons, it can be of no consequence what were the motives or inducements to the contract. The only inquiry, at least as to third persons is, does a marriage in fact exist according to the prescribed forms of law? If so, the motive which prompted to the marriage, or the consequences flowing from it, are wholly irrelevant, so far as relates to the validity or effect of such marriage.

The judges have no authority to judge motives for entering a marriage. The best a third party can do is to assure itself that proper forms were followed. The judges say there is “want of all jurisdiction” for them to pursue Mrs. Sullivan entering marriage with Mr. Clarke. They have no authority to inquire why she acted as she did. Mrs. Clarke was willing to forfeit her estate in a hasty marriage under the terms of her late husband’s will, her children presumably taking possession of the land and the slaves.

‡‡ I mean to say that if the federal supreme court intends to impose a divisive and monolithic definition of marriage as including homosexuals on Tennessee, our state should simply nullify said ruling by an act of the General Assembly.

[This essay was first published April 2013.]

Sources: Micah Clark, “Homosexual Activist Admits True Purpose of Battle is to Destroy Marriage, Illinois Family Institute, April 6, 2013

McKinney vs. Clarke et al, 32 Tenn. 321; 1852 Tenn. Lexis 74; 2 Swan 321

‡ Vishal Mangalwadi, The Book that Made Your World[;] How the Bible Created the Soul of Western Civilization, 2011, 442 pp. I highly recommend this author, with whose wife, Ruth, my wife, Jeannette, has a friendly acquaintance.

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