Contents:

Background
Proposed Constitutional Challenges to No-Fault Divorce
Definitions
Obligations of Contract, Church or State
Sources Cited

Background

Unilateral no-fault divorce is forced on one spouse and parties’ children by the party wanting a divorce when the other party has done nothing grave enough to justify permanent separation of spouses. Civil judges make orders:

1. split children between parents,
2. split property,
3. require financial support, and
4. free both parties to enter another civil marriage.

If courts make these determinations, marital misconduct is typically irrelevant, which is contrary to many parties’ original marriage intentions.  In no-fault divorce proceedings, the party wanting to keep the family together is pressured or coerced to agree to a divorce plan that relieves the other party of many of the obligations promised in marriage.

For parties that agreed to uphold obligations of marriage defined by their church, a civil judge is not competent to interpret those agreements. In the Catholic Code of Canon law, the bishop has competence to give parties instructions.  Prior to the wedding, at anytime during the marriage, parties could  have named other arbitrators for managing marital disputes.

Proposed Constitutional Challenges to No-Fault Divorce

I challenge the practices, local rules, and statutes implemented by this court:

(1)     The court does not have subject matter jurisdiction because the Plaintiff/Petitioner does not have standing demonstrated by claiming an injury caused by the Defendant. Allegations that the marriage is irretrievably broken, parties have irreconcilable differences, or parties have been separate and apart for one year, are not injury in fact caused by defendant. Injury must exist for Plaintiff to have standing in civil suit.

(2)     The Defendant’s right to due process is being violated because the court is depriving Defendant of property and fundamental liberties. Orders to vacate the marital home, pay support, and pay GAL’s, psychologists, and attorneys that Defendant never hired deprive Defendant of property. Parenting plan deprives Defendant of the right to bring up Defendant’s own children. While the Plaintiff waived the Plaintiff’s right to parent the children when the Plaintiff attempted to invoke the jurisdiction of the court over parties’ children, the Defendant did nothing to waive Defendant’s right to raise children.

(3)     The taking of children away from a fit parent (as are custody orders forced on the Defendant) must be judged under the strict scrutiny standard. Forcing Defendant out of the marital home, and varied orders for payments must be judged under the strict scrutiny standard. The state has shown no governmental interest served by these infringements.

(4)     The Defendant’s right to equal protection under the law is being violated because the Defendant is upholding Defendant’s obligations in parties’ marital contract, but is Plaintiff is not being held accountable to uphold obligations promised in contract.

(5)     The State is interfering with intended obligations of parties in a contract; verbal marriage promises are recognized as effectuating marriage contracts, and the parties contracted to uphold obligations toward each other and their children as specified in the rules of the church (e.g. Catholic Code of Canon Law).

(6)     The civil judge has no competence to apply and interpret the rules of the church because, by so doing, the judge would violate the First Amendment.

(7)      Religious liberties are being violated when Court makes determination solely on the viewpoint of Plaintiff  that marriage is irretrievably broken, for example; Defendant is ordered to stop instructing parties’ children about the teaching’s of the children’s religion (e.g. Church teaching on marriage, separation, divorce, adultery, abandonment, or annulment).

(8)     The Defendant’s right to due process is being violated because the no-fault ground for divorce is too vague with danger of arbitrary and discriminatory application. (i.e. irretrievable breakdown, incompatibility).

(9) Due process is missing because there is never a possible defense against the divorce; defendant has no legal bar against incompatibility, irretrievably broken; irreconcilable differences; and has not possibility of showing lack of merit.

(10)     The State is interfering with intended obligations of parties in a contract because the statute shows that marital misconduct is excluded as a consideration in the division of property, determining child support, alimony, and custody. This is contrary to the obligations promised in the marriage contract. These parties agreed to follow the rules of their Church (e.g. Catholic Code of Canon law and historical jurisprudence)

(11)     The statute violates separation of powers and gives the illusion that the divorce judge is serving in a judicial capacity when the judge is really only serving in an administrative capacity because the grounds for divorce are not weighed against any facts and theres is zero defense. State constitutions require divorce to be a judicial proceeding and no-fault divorce makes that impossible.

Definitions

Certificate of Marriage, Church:   
Document recording that couple married in accordance with the laws of the Roman Catholic Church, and thereby each agreed to uphold his obligations toward the other spouse, their children, and the entire Church.

Certificate of Marriage, Government:   
Document registering couple as married in county records. Some states have laws against a minister witnessing the solemnizing of vows for parties that don’t register their marriage with the State.

Contract:   
An agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit; there is an offer, consideration, and acceptance.

Contract of Marriage:   
For Catholics, marriage is, among other things, a contract. In both Catholic Canon law and civil law, marriage contracts take effect when parties verbalize their marriage promises. States’ laws show marriage is a contract too. (See examples – CA 300, FL 741.07(1), NY Dom(3)(10), IL 750 CS 5/201, PA 23(1102), CT Sec. 46b-28, OH 3103.01)

Color of Law:   
“Under the color of law” means with the apparent authority of the law but it actually conflicts with the law (source).

Domestic-Relations Exception
“The domestic-relations exception to federal jurisdiction prohibits federal courts from hearing cases involving family-law questions within the traditional authority of the states.” […] “This Note argues that the domestic-relations exception does not, as a matter of positive law, apply to federal-question cases.” […] “Federal courts have the authority to resolve important and timely questions of federal law. The domestic-relations exception should not be misconstrued to stand in their way.” (source).

Equal Protection:   
The Equal Protection Clause of the 14th Amendment §1 of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws (source).

Federal Court, Right to Bring an Action:   
Every person who, under color of any statute of any State, subjects any citizen to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress (42 U.S. Code § 1983 source).

Freedom of Religion:   
First Amendment of the U.S. Bill of Rights shows “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” states have similar provisions in their constitutions.

Fundamental Liberties:   
Besides those listed in the Bill of Rights (e.g., liberty, property 14th Amendment §1), fundamental liberties include those liberties which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society; includes the right of parent to raise his/her children as he/she see fit, including the right to educate them (source).

Merely Civil Effects of Marriage:   
Whether or not a case concerns only the merely civil effects of marriage is a consideration in Catholic Canon law (c. 1692 §3) and Separation (temporary or permanent) can in no way be specifically considered a merely civil effect over which the State has any native authority. An example of a merely civil effect of marriage would be the distinction between filing income taxes as single or married. Another merely civil effect of marriage would be any change in civil status from married to unmarried, or from married to civilly separated.

Ripeness:
In United States law, ripeness refers to the readiness of a case for litigation; “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” For example, if a law of ambiguous quality has been enacted but never applied, a case challenging that law lacks the ripeness necessary for a decision. The goal is to prevent premature adjudication; if a dispute is insufficiently developed, any potential injury or stake is too speculative to warrant judicial action (source).

Standing:   
The parties in a case must have standing, otherwise the judge should dismiss the case. In a civil complaint (as is a divorce complaint) the Petitioner/Plaintiff does not have standing unless he complains that he has suffered injury caused by the Defendant. (cf. source).

Strict Scrutiny Standard:   
When someone challenges that a state law or policy is unconstitutional, the federal courts are supposed to use the strict scrutiny standard when judging the constitutionality of a state law/policy that infringes on fundamental rights. The court presumes the policy to be invalid unless the government can demonstrate a compelling state interest to justify the policy (source).

Subject Matter Jurisdiction:   
The power of a court over the nature of a case and the type of remedy demanded. A judge does not have rightful authority unless the judge is being asked to implement the kinds of laws over which judge has jurisdiction by a party that has an applicable complaint. For example, a municipal small claims court judge has no authority to judge a criminal case. A civil court judge doesn’t have authority to judge a case unless the parties bring a certain kind of claim (cf. source).

Void For Vagueness:   
In American constitutional law, a statute is void for vagueness and unenforceable. Law must state explicitly what it mandates, and what is enforceable. Definitions of potentially vague terms, are to be provided (source).

Vows Solemnizing:   
Spoken exchange of vows; after vows are spoken, marital contract takes effect and the parties are married. However, certain deficiencies can make the marriage invalid (e.g., fraud, insanity, or being under age).

Who may solemnize:   
State laws show that clergy can solemnize vows. For example, Ohio R.C. 3101.08 shows, “any religious society in conformity with the rules of its church, may join together as husband and wife any persons who are not prohibited by law from being joined in marriage.” Pennsylvania Statute Title 23 §1503(a)(6)(b) shows that persons qualified to solemnize marriages includes every religious institution “when at least one of the when at least one of the persons is a member of the society, institution or organization, according to the rules and customs of the society, institution or organization.

For Catholics, the parties solemnize their own vows and the priest is only a witness.

Obligations of Contract, Church or State

Promises made by couples in their marriage vows constitute a binding contract. Couples can also bind themselves to follow particular rules if the couple were to separate. Those who marry as the Catholic Church understands marriage, agree prior to marriage, that they will bind themselves to follow the laws of their church (canon law) regarding marriage, separation and divorce. People often designate terms of contracts which bind them to follow rule-books besides civil law, such as electric code, university student handbook rules, and arbitration rules. It is allowable to civilly bind oneself to religious code too.

For those who agree to adhere to obligations specified in the Catholic Code of Canon Law, the local bishop has competence to instruct parties of the parameters of a separation plan that is in accord with divine law (c. 1692 §2). Civil divorce (for Catholics) is nothing more than separation of spouses.

Federal and State legislatures are restricted from making laws prohibiting the free exercise of religion.

According to authoritative church teaching, those who choose Roman Catholic Marriage, may not hand over their marital contract to the power and will of the rulers of the State. According to the government’s Bill of Rights, legislatures are forbidden from prohibiting people to freely exercise of their religion; for many, the terms of the marriage contract are specified by their chosen religion.

If the state requires that everyone register marriages with the County Recorder, the state legislators can’t force Catholic citizens to accept an entirely anti-Catholic set of terms for marriage contracts – binding parties to routine, unilateral no-fault divorce. The Catholic Marriage contract explicitly omits no-fault divorce and specifies grounds for separation while the marriage bond remains, and the judges with competence to interpret and apply the church laws and doctrines are the diocese Bishop and his mandated delegates.

If a marriage is invalid because one party was mentally incompetent on their wedding day, or committed fraud and never intended to uphold marital obligations, the Catholic Code of Canon law shows that the Church has competence to determine the obligations of the parties toward each other and their children.

Sources Cited

The U.S. Constitution – 1st Amendment requires that, “congress shall make no law prohibiting the free exercise of religion.”     See Bill of Rights

The U.S. Constitution – 5th Amendment requires that, “No person shall…be deprived of life, liberty or property without due process of law.”     See Bill of Rights

The U.S. Constitution – 14th Amendment requires that, “nor shall any State deprive any person of life, liberty or property, without due process of law.”     See Bill of Rights

The U.S. Constitution  “No state shall pass any law impairing the obligation of contracts” Article 1 Section 10

U.S. Supreme Court—Children

“[T]he interest of parents in the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court” … “That liberty interest of parents includes the right “to direct the upbringing and education of children under their control.”
Troxel v. Granville, 530 US 57 – Supreme Court 2000

 A “mother [‘s]… right to the care, custody, management and companionship of her minor children” are rights “more precious” to her “than property rights.”  May v. Anderson, 345 US 528 – Supreme Court 1953

U.S. Supreme Court—Standing

The irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”; Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant; Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”  Lujan v. Defenders of Wildlife, 504 US 555 – Supreme Court 1992

U.S. Supreme Court—Religion

“To permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] church so as to decide . . . religious law [governing church polity]. . . would violate the First Amendment in much the same manner as civil determination of religious doctrine.” Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 US 696 – Supreme Court 1976

U.S. Supreme Court—Void for Vagueness

“If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 US 104 – Supreme Court 1972

The civil law

In Ohio shows that “any religious society in conformity with the rules of it’s church, may join together as husband and wife any persons who are not prohibited by law from being joined in marriage.” For Roman Catholics, the husband and wife solemnize the vows and the priest is a witness. See Ohio RC 3101.08 Other states have similar laws.

The Apostolic See (Vatican) 

The Catholic Church establishes the language used in the wedding vows for those who choose Catholic Marriage. During their marital investigation and preparation (prenuptial agreement and/or consideration of contract), and at just before they exchange vows and during their vows, the couple consents to specific terms. These agreements are predetermined and the verbal contract is unchangeable. See Order of Celebrating Matrimony and the Rite of Marriage, exact language of promise.

The couple also specifies the rules they will follow regarding the upbringing of children, and they do not mention the laws of their respective state. The specify the laws of Christ and His Church which is the Roman Catholic Church for those who marrying in this Church.

Encyclical Letter, Arcanum,

For those that chose Catholic Marriages, their chosen system specifies that the power over marriage cannot be transferred to the civil court and the sacramental bond cannot be separated from the marriage contract. See Encyclical Letter, Arcanum.

Catholic Diocese Chancellor’s affidavit submitted to civil court

Chancellor described the pre-marital agreement to abide by the Roman Catholic Code of Canon law. Canons 1151-1155 and 1692 specify the grounds and procedures for separation. See expert opinion submitted in civil divorce court.

Canon Law Annotated. Those who choose Catholic Marriage limit their own options for separation or divorce, and specify the criterion under which they will approach the civil court. They will request the canonical authorization as a necessary precaution, to prevent civil court judgments for their families which violate divine law. See preventing civil court judgement that violate divine law. canon 1692.