TN should restore common law marriage, delete statute

Common-law marriage is marriage as a matter of right and not marriage as a state-granted privilege. If we are to restore marriage in America and in practice in Tennessee, it is wise to reassert marriage as a right and not an act permitted only under a license from the county clerk.

By David Tulis / 92.7 NoogaRadio

A defense today of marriage in its old legal form in Tennessee comes from an unusual source, an attorney and former state legislator, David Fowler. Mr. Fowler is a conservative Christian activist who leads the pro-family group Family Action Council of Tennessee in Nashville.

Mr. Fowler suggests Tennessee legislators get out of regulating marriage entirely and let the people in the state thereby avoid the tyranny of the 2015 supreme court opinion, Obergefell v. Hodges, which is held generally to ordain homosexual unions as marriage.

Mr. Fowler says if marriage is restored to the people under their ancient — even creational — common law rights — marriage once against will work its way across society in its godly and biblical form. That is, between one man and one woman. Under common law, no two men can marry, nor two women.

The only way gays can be married under Obergefell is under statute where existing marriage regimes are deconstructed and converted by judicial fiat into permitting queer unions as marriage.

If the state has no marriage controls whatever, Mr. Fowler suggests, its people and government escape the scorched-earth legal claims of Obergefell against a godly social and political order.

In a blog post, Mr. Fowler attacks traditional thinking among the political classes. “Christian state officials who believe male-female marriage is a real thing, not a man-created thing, are stuck in the mindset that an adult man and woman cannot get married unless civil government gives them a de facto permission slip (license) to get married or, at a minimum, defines it for them.”

Elected officials must extinguish the idea that if marriage exists, somehow it must be as a grant from the state itself. They must stop intervening and get out of the way.

Registration v. license

What follows is Mr. Fowler’s review of your common law right to marry apart from the state:

Tennessee’s legislators simply need to repeal the marriage licensing statutes and let an adult man and woman enter into what the civil law has called for centuries a “marital contract.”

What I’m saying is that a man and woman would marry the way they did it for centuries under the common law—a non-written type of “law” that precedes “enacted,” or statutory, written law. They would declare publicly their intention to be married as husband and wife, and then live as husband and wife.

I know that sounds rather loosey-goosey to those accustomed to the certainty of government paperwork, but that would only be true if one is playing loosey-goosey with his or her marital intention in the first place and wants to claim later he or she was never married.

So, to avoid widespread panic among those who like government paperwork and want to “nail down” the marital intention, the law would allow (not require) the happy and newly married man and woman to file a notice of their marriage with the county clerk and have the county clerk send that notice to the state for a statewide record of their private, non-government marriage.

I can hear the naysayers now: This is unheard of. This can’t work.

Hogwash!

Texas allows couples to choose between a licensed marriage and an “informal” marriage, or what I’ve called a common law marriage; a few other states still recognize common law marriages. Federal law recognizes common law marriages.

Moreover, this type of private “transaction” coupled with a “public registration” system has worked for decades with respect to real estate. People don’t get a government license to sell their home, and people don’t get a government license to buy a home. A buyer and seller contract for the sale and purchase of a home, exchange a deed and money, and then register that transaction to provide notice of the arrangement to the public and third parties.

In fact, these naysayers fail to realize that marriage was considered a civil (as opposed to ecclesiastical) contract at common law, the same as that governing a buyer and seller of real estate, only the former was known as a “marital contract” and the latter was known as a real estate contract. Even the United States Supreme Court has acknowledged that a marital contract and registration procedure was common before states switched in the 1900s to requiring licenses. There is really nothing new here.

Tennessee’s constitution affirms marriage as civil contract

The right to contract is not itself a right created and bestowed by civil government. People have been entering into contracts before there were any “enacted” statutes governing contracts. That’s why, as far as civil law (not ecclesiastical law) was concerned, this private, non-government created and non-government licensed understanding and form of marriage was called a civil contract.

That’s also exactly how our state constitution understands and treats marriage: “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.”

Alabama’s Constitution is much the same. Unfortunately, its Legislature didn’t appreciate the fact that there is no constitutional conflict between a man and woman exercising their right to marry under the non-government enacted common law and Obergefell’s holding regarding the right to marry under “enacted law.”

Alabama can fix its mistake next year; let’s hope that next year Tennessee’s legislators won’t make the same one.