Separation of Church and State? Marriage Contract Abomination

Obligations of a contract are binding regardless of whether they are written in the state’s electric codes, a paper napkin, a car lease, or in the Catholic Code of Canon Law and Catechism.

This blog is a reprint of chapter 8, from my book “And Justice for None.”

By Bai Macfarlane

I am one of those Americans who promised to be married “until death do us part” in my marital vows.  I am one of those women who would never have agreed to bear and raise children for a man who hadn’t promised to be my husband for life.

Ohio Revised Code 3103.1 defines the mutual obligations of marriage; “Husband and wife contract towards each other obligations of mutual respect, fidelity, and support.”

The dictionary definition of fidelity is “loyalty or faithfulness to obligations, promises, or those to whom one has made a commitment.”

I had my first chance to speak with the judge in my divorce proceeding on June 14, 2004.  When I told the judge I was not interested in cooperating with the divorce proceeding because my husband and I had an antenuptial (“before marriage”) agreement to be married for life in accordance with a specific set of predefined laws, she told me that didn’t matter.  She said:

I found her comments most interesting, considering that the Ohio State Bar Association (OSBA) has written, “The promises made by the couples in their marriage vows constitute a binding contract.”  (The Law and You,  pg. 132 and 152)   The OSBA also says, “When you repeat your marriage vows, you enter into a legal contract.” (Ohio’s Marriage Laws pamphlet)

I’ve read Section Seven in Ohio’s Bill of rights (Rights of conscience; education; the necessity of religion and knowledge) and I can’t find anything in the constitution or Ohio Statutes which makes it illegal for people to make promises to abide by some third party’s specified set of rules, or to make promises which coincide with the laws of their church.

For example, in Bay Village, Ohio, there is a big section of land which was given to the city by the Cahoon family in a will.  The land was to be used as a public park, but the city could only keep the land if they agreed to not allow anyone to use the park for organized activities on Sundays.  It is commonly understood that the Cahoon family made this restriction because they wanted to keep the third commandment, “Remember to keep holy the Lord’s Day.”   When Bay Village has its annual 4th of July carnival in Cahoon Park, the carnival can’t be open on Sunday.  If a carnival company wanted to sue Bay Village, would the court refuse to enforce the conditions set forth in the Cahoon family’s will, because the Sunday restriction was a religious agreement?

Adultery has been a ground for divorce in Ohio law since at least 1824.  It is still on the law books today as a fault-based ground for divorce.  (ORC 1305.01 (C))  The sixth commandment in the Old Testament is “Thou shall not commit adultery.”  Has the court been enforcing a religious agreement when it’s been penalizing adulterous spouses since 1824?

Between 1824 and 1974, and even today, there are plenty of couples who vowed to be married ‘til death.  Abandonment was a ground for divorce in 1824, and it is still listed as one of the fault-based grounds for divorce today: “willful absence of the adverse party for one year” (ORC 1305.01 (B))

If a man abandons his wife, he is in breach of his contractual marital obligation to be man and wife until death.  He could be sued for fault.  If my Judge says she can’t enforce a religious agreement, does this mean she’ll issue divorces for abandonment only for those people who vowed to be married until death in ‘courthouse’ weddings?  But for those who vowed to be married until death in the context of a religious celebration, she won’t issue a divorce for abandonment, because that couple made religious vows?

According to the seventh article in the Ohio Bill of Rights, and the first amendment in the United State’s Bill of Rights, no interference with the rights of conscience shall be permitted.  If our marriage vows are a legally-binding contract, as Catholics, we would never have agreed to be married if we were forbidden by the state to promise to be married until death, or if we were forbidden by the state to contract to be married in accordance with the laws of Christ and His Church.

In our diocese, before we were married, we were required to sign an antenuptial agreement — our Declaration of Matrimonial Consent — in which we promised each other that we would marry as the Catholic Church understands marriage, and which referenced canon law.

If both antenuptial agreements and wedding vows are supposed to be contracts, then the parties are free to create their own terms for the contracts so long as they aren’t contracting to do something illegal.   Why should the court care whose rules we agree to follow as long as we are not agreeing to do something that is forbidden by law?

There are times when certain parties enter into agreements which can include the laws of foreign countries.  For example, if Sam-small-business-owner wanted to open a French-croissant franchise in the food court of an Ohio mall, he’d have to enter into a franchise agreement with French-croissant, which happens to have its headquarters in France.

As part of the contract between Sam-small-business-owner and French-croissant-franchise-operations, the croissant company requires Sam to agree to only lease space where the landlord would transfer the existing lease, with no changes, to a new owner if he were to decide to sell his franchise in the future.  If there were any conflicts between a new owner and the landlord, the case would fall under the jurisdiction of the French Court, and both parties must agree to follow the Rules of Arbitration of the International Chamber of Commerce.  Rules of arbitration bind both parties to follow certain negotiating procedures and limit their options to go to the civil court.  According to the croissant company’s requirements, a franchise owner has to agree to use only French courts in resolving lease disputes.

Then Sam-small-business-owner and mall-landlord sign a contract for Sam to lease a section of the mall food court for five years.  The landlord reads, and understands the arrangement with French-croissant-Company in France.  According to the agreement, if Sam sells the company to a new owner, the mall-landlord must transfer the lease agreement to the new owner.  If there is any problem with the lease transfer, mall-landlord and the new owner agree to follow the Rules of Arbitration mentioned above, and use the French civil court if needed.

After three years, Sam decides he wants to sell his French-croissant business to Nick-new-owner.  Nick-new-owner expects the existing five-year-lease between Sam and the mall-landlord to be transferred to him.  But mall-landlord forgot all about the agreement, and he insists on raising the rent 15% for Nick-new-owner.  Nick refuses to pay.  Mall-landlord sues Nick-new-owner in Ohio court.  Nick-new-owner brings the lease and franchise agreement to the Ohio judge;  after reading the contracts, the judges dismiss the case because the Ohio court doesn’t have jurisdiction because the landlord had agreed to abide by the croissant company’s franchise agreement which required the lease disputes be handled by rules of Arbitration and French trial courts.  The court wouldn’t tell Nick-new-owner, “I’m not allowed to take into account Rules of Arbitration or French law.  It’s called the separation of France and Ohio.” Nick-new-owner and mall-landlord would hire experts in Rules of Arbitration of the International Chamber of Commerce.  After Nick and the landlord follow the Rules of Arbitration of the International Chamber of Commerce, only then could they go to court to do whatever was allowable according to the Arbitration Rules.  And they’d have to go to France’s court because that is what the croissant franchise agreement required and the landlord agreed to abide by those obligations when he accepted the terms in Sam-small-business-owner’s lease three years earlier.

There are also many situations when both parties-to-a-contract promise to abide by a third party’s set of rules. Construction contracts most always specify that builders are obligated to abide by certain minimum standards for electric, plumbing, HVAC or framing.  If a home-builder planned on providing his customer with a very energy efficient home, he could agree to build a home according to Natural Resources Canada’s R-2000 Standard.  If the customer believed the builder cheated and didn’t really follow the R-2000 standards he could bring the builder to court.  The judge would NOT say:

Any reasonable person would expect the judge to require the parties to get expert opinions from someone qualified to study the R-2000 standards and determine if, in fact, the builder had cheated the home buyer.

In the USA, companies commonly agree to follow the Rules and Procedures of the American Arbitration Association (AAA), which is a not-for-profit organization dedicated to the development and widespread use of prompt, effective and economical methods of dispute resolution. Its mission is one of service and education. If a person — who had agreed in a contract to follow the Rules of the AAA —  tried to sue the other party in civil court, the judge couldn’t take any action on the case because both parties had agreed in their contract to involve an outside arbitrator.

If the courts uphold contracts in which parties agree to follow Rules of Arbitration of the International Chamber of Commerce, the Laws of the country of France, the Natural Resources Canada’s R-2000 Standard, and the Rules and Procedures of the American Arbitration Association, why don’t the courts uphold my husband’s and my contract to follow the rules of the Roman Code of Canon Law, which is simply the law of the country of the Holy See?

Section Seven in the Ohio Bill of Rights states that no interference with the rights of conscience shall be permitted.  According to my conscience, I can’t get married unless we contract to be married until death do us part and contract to be married in accordance with canon law.   If marriage vows and antenuptial agreements are legal contracts, then the Ohio courts should uphold them like any other contracts.  The civil court should recognize it doesn’t have jurisdiction to interpret whether we are following canon law correctly, any more than they are qualified to apply Arbitration Rules, or adjudicate French law.  Parties who show up in civil court and are under the jurisdiction of the Code of Canon law should be remanded to their tribunal court.  Tribunals exist all over the world because the Code of Canon Law has jurisdiction all over the world, especially for those who have contracted to follow it.

My husband and I agreed to be married as the Catholic Church understands marriage.  We have an antenuptial (before marriage) written agreement, named our Declaration of Matrimonial Consent, which references canon law.

Before (ante) we were married (nuptial) we also agreed to several written promises: to love and honor each other as man and wife for the rest of our lives, and to bring up our children according to the law of Christ and his Church.  In our marriage contract, my husband promised to take me for his lawful [in accordance with canon law] wife, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.

I know that presently my husband is breaching both our antenuptial agreement and our marital contract.  The Code of Canon Law (law of the Vatican See) has allowances for separation in no. 1153.1, and allowances for divorce in certain circumstances in no. 1692.  I expect us both to fulfill our obligations to obey those rules that we contractually agreed to follow when we were married.

When my judge said she does not deal with religious issues because there is a separation of church and state, I would agree.  But not dealing with them is very different than denying their existence.  Civil courts have weighed in very clearly regarding the relationship between church and state. The US Supreme Court wrote:

In July of 1977, the Supreme Court of Ohio wrote that parties can’t deny that they have subjected themselves to church rules if they are a member of the church, and that civil courts have to accept church tribunal’s decisions.  This decision was citing an earlier decision of the US Supreme Court:

As a general rule, in a civil court action, where a right is dependent upon a question of doctrine, discipline, ecclesiastical law, rule, custom, or church government which has been decided by the proper tribunal within the organization, the civil court will accept that decision as conclusive and be governed by it in its application to the cases before it. (Harrison v Hoyle, 24 OS 254; Mannix v Purcell, 46 OS 102, 19 NE 572)

The Common Pleas Court of Fairfield County, Ohio wrote:

From my perspective, as a loyal, faithful, stay-at-home mom with four young sons, I see no justice whatsoever in the courts refusing to enforce my husband’s and my voluntary agreement to follow another jurisdiction’s rules regarding our marriage.  I never would have gotten married if my husband told me he was not promising to be my husband until death.

Yes, there is a separation of church and state.  I haven’t crossed the line though and demanded that anyone do anything unconstitutional, but can anyone explain to me how the court has not crossed the line?  The court has both interfered with my antenuptial and marriage contracts, by writing court orders which violate them, and the court has evidently denied the legality of them, by not enforcing them.

Is the state saying that it is illegal to make a contract to be married until death?  If not, then we made a legal contract and they would enforce it — and it would be illegal for my husband to obtain a “no-fault” divorce.