Friday, August 15, 2008

The Marriage Amendment: the legal background of marriage in Arizona

The position of the Arizona Courts concerning the importance of marriage, is stated in the case of Moran v. Moran, 188 Ariz. 139, 933 P.2d 1207 (App. 1997). This is case is important for its clear review of the importance of marriage to both the family and society as a whole.

There is a need for a balance between the interests of the individual and those of the society as a whole. It is only recently, in the United States and other democratic and republican systems that the interests of the individual have begun to erode the greater good of the whole society. Carried to its illogical conclusion, you have anarchy, with every man and woman acting as a law unto themselves. The concept of "civil and individual rights" have evolved to the point, that virtually any restraint on the individual is deemed unacceptable. However, liberty without restraint is no liberty at all.

We have traditionally looked to our court system to balance the excesses of both our legislatures and our elected and administrative officials. Whenever this balance shifts to one or the other, there is a erosion of that fundamental liberty that maintains both our society and our government. It is apparent that in some areas of the country, the balance has shifted to the judicial branch to the extent that the courts are abrogating the majority will of the legislatures and the people themselves. For example, Arizona has, for the most part, an appointed judiciary. While counties with smaller populations such as Apache, Gila and Navajo, still elect their Superior Court Judges, the larger population counties like Maricopa County, have a completely appointed judiciary. In California the same type of system has produced case like the one in San Francisco overruling the marriage law and sanctioning alternative marriages.

If you would like to read that case, here is the citation and link to the full opinion. It is 172 pages long:

In re Marriage Cases
43 Cal.4th 757, 183 P.3d 384

In contrast here is the opinion of the Arizona case of Moran v. Moran cited above:

The Court's comments on the case are as follows:

"We start our analysis by considering the state's interest in marriage. Marriage is a basic civil right, and the freedom to marry is recognized as a fundamental right within the protective ambit of the equal protection clause of the Fourteenth Amendment. Nelson v. Minner, 604 F.Supp. 590, 592 (S.D.Iowa 1985), aff'd,786 F.2d 1172 (8th Cir.1986); Boynton v. Kusper, 112 Ill.2d 356, 98 Ill.Dec. 208, 213, 494 N.E.2d 135, 140 (1986) (citing Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967)). Nevertheless, the state is also vitally concerned with the establishment of marriages because marriage is a relationship in which "the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Nelson, 604 F.Supp. at 593 (quoting Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888)). The licensing and performance of marriage and the rights, duties and obligations derived from marriage are of paramount importance to the state and are subject to its control. Rubino v. City of New York, 125 Misc.2d 936, 480 N.Y.S.2d 971, 972 (Sup.1984).

It is well-established that states have the power to determine how its residents may enter into marriage. United States v. Seay, 718 F.2d 1279 (4th Cir.1983), cert. denied,467 U.S. 1226, 104 S.Ct. 2677, 81 L.Ed.2d 873 (1984). See also In re Guardianship of Mikulanec, 356 N.W.2d 683, 689 (Minn.1984) (marriage is "a social relationship subject to the state's police powers"). Accordingly, "[r]easonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed." Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978). See also Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977); Nicpon by Urbanski v. Nicpon, 145 Ill.App.3d 464, 99 Ill.Dec. 458, 461, 495 N.E.2d 1193, 1196 (1986). Among the matters the state may control are the forms and procedures necessary to solemnize marriages. Nelson, 604 F.Supp. at 592.

Arizona has codified its procedures necessary to form legal marriages at A.R.S. § 25-111. Only two procedural steps are required-obtaining a marriage license and solemnizing the marriage by a person authorized to do so. Moran challenges only the marriage license requirement."

At least in 1997 the Arizona Court of Appeals seemed to recognize the fundamental importance of marriage as the "foundation of the family and of society."

The Moran case involved the following fact situation:

In March 1992, Moran and Braun entered into a contract entitled "Marriage Contract." The contract provided that it was irrevocable and based on "the Divine Law of Yahweh, as revealed in Holy Scripture." Also contained in the contract is the statement that the agreement "is not subject to any statute, rule, regulation, or policy of man, in any jurisdiction whatsoever, if said statute, rule, regulation, or policy is contrary to the Principles of Divine Law. Nor are any of its provisions voidable or challengeable in any court in any jurisdiction."

In the agreement, Moran and Braun contracted to enter into "the state of Holy Matrimony, recognizing the Divine Law of Yahweh as the sole authority for creating and regulating the role and status of Husband and Wife." The remainder of the contract reads:

The Marriage shall be structured according to the Patriarchal Laws of Holy Scripture, and the Authority, Responsibility, and Headship of the Husband shall not, and cannot, be challenged or otherwise interfered with by any civil authority. Any issue of the Marriage shall not be under any form of disability, conventional, legal, or otherwise, to any civil government; shall owe its existence solely to Yahweh; shall, under the Divine Law of Headship, be subject only to the Husband/Father in temporal matters; and cannot be compelled to contract into any form of civil servitude repugnant to and violative of said Divine Law.

All forms of civil law relevant to Marriage and Family not in conformance with the Principles of the Divine Law of Yahweh are specifically repudiated, and the parties declare them to be non-binding and un-enforceable upon this union.

The contract includes "Vows of Union," which Moran and Braun signed before a notary public; the vows are much like traditional wedding vows. The union was solemnized on April 5, 1992, in a religious ceremony with family and friends in attendance. The contract was recorded in the Maricopa County Recorder's Office on September 24, 1993.

On September 14, 1993, a daughter was born to the couple. Between November 1993, and February 1994, Braun periodically left Moran, taking the child with her, but then returned to Moran. Braun initiated at least five such temporary separations. In January 1995, Braun again left Moran. Moran filed both domestic relations and juvenile actions seeking to obtain custody of his daughter. Braun filed a petition seeking a protective order. On February 9, 1995, Moran filed the declaratory judgment action that is the subject of this appeal. He sought a judgment declaring that (1) the marriage contract was valid and enforceable, any Arizona statute to the contrary notwithstanding, (2) a valid marriage existed between Moran and Braun, (3) Braun had breached the contract and was not allowed to remove the child from Moran's custody without his consent, (4) Braun must return the child to Moran, (5) Moran was the sole and lawful custodian of the child, and (6) Ariz.Rev.Stat. Ann. (A.R.S.) § 25-111et seq. is constitutionally invalid as applied to the facts of the case.

Braun failed to file an answer to the complaint, and Moran applied for an entry of default. Default was entered on March 15, 1995. Moran subsequently moved for a default judgment. He argued that the marriage contract created a legal and lawful marriage and that A.R.S. §§ 25-111 and 25-121 are invalid, as applied to his marriage contract, because the requirement of a marriage license interfered with his free exercise of his constitutionally-protected religious freedoms, impaired the obligations of contract, and violated equal protection of the law. He pointed out that the consequence of invalidity of the marriage contract due to the state requirement would be that he would not be presumed to be his child's father.

Braun filed an answer to the complaint in June 1995. She also moved to set aside the entry of default.

After hearing oral argument on the motion for a default judgment, the trial court found and declared that the purported marriage of Moran and Braun was entered into without the issuance of a marriage license as required by A.R.S. § 25-111 and therefore was not a valid marriage. The court further declared that the contract between the parties was not enforceable as a marriage contract nor could it control the custody of the child of the parties. Because, as a matter of law, the court could not grant the declaratory relief sought by Moran, it ruled that Braun's motion to set aside the entry of default was moot. The court also denied as moot Braun's petition for temporary orders regarding custody and support because the paternity of Moran had not yet been established.

In deciding the religious aspects of the case, the rule in Arizona is that a court may determine whether a state act imposes a substantial burden on an individual's exercise of religion. See Fordham Univ. v. Brown, 856 F.Supp. 684, 697 (D.D.C.1994) (regulations prohibiting federal funding of telecommunication equipment for sectarian programming did not burden free exercise of religion, much less substantially burden it). We conclude that Arizona's marriage license requirement does not substantially burden Moran's free exercise of his religion.

To be continued

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