The material in this article has been adapted from from “Important Decisions Regarding Marriage Soon to Be Made In Tennessee,” which is available here.
Legislation called the “Marital Contract Recording Act,” was proposed in Tennessee in 2022 and was championed by former Tennessee State Senator David Fowler, president of the pro-family Family Action Council of Tennessee, and his allies in the Tennessee Senate and House. Eventually it was sent to a “summer study committee,” effectively killing it for the 2022 session. Here are some of the important facts about it and what it would have done had it passed and become law.
Friday, April 8, 2022
A few months ago, the Family Action Council of Tennessee published an article explaining why proposed legislation in Tennessee, “The Marital Contract Recording Act” (MCRA; Senate Bill 562/House Bill 233), is needed. Among other things, the article highlights the differences between marriage certificates in Tennessee before and after the Obergefell ruling (the 2015 Supreme Court opinion that mandated same-sex marriage throughout the United States):
At this link you can see what the state’s Certificate of Marriage looked like prior to the Obergefell decision and how it now reads. It will be apparent that the state has eliminated the exclusivity of male and female as husband and wife.
At the very least, this poses a problem for a couple in Tennessee who believe in natural marriage, and for ministers and pastors who perform marriage ceremonies across the state who also believe that marriage is, and can be, only the union of one man and one woman.
There are even more problems than this. The following provision in Tennessee marriage statues is still on the books and is crystal clear about marriage licensing in Tennessee:
T.C. A. § 36-3-104(a)
(a) No county clerk or deputy clerk shall issue a marriage license until the applicants make an application in writing, stating the names, ages, addresses and social security numbers of both the proposed male and female contracting parties and the names and addresses of the parents, guardian or next of kin of both parties.
no court has ever ordered the state to stop complying with the statute and the legislature has never changed it, state and local officials have unconstitutionally administered the statute as if the legislature had amended it to delete the requirement that applicants for a license be a “male and female.”
But the way the law is now being interpreted by the governor and county clerks creates a problem for people who believe marriage is a kind of reality defined exclusively and exhaustively in terms of the union of male and female as husband and wife. Belief in such realities is pervasive. For example, the meaning we ascribe to any thing, even sexual acts, is more than the thing itself.
The Marital Contract Recording Act would not solve all the problems Obergefell has created, but it will address some of them in important ways. As the FACT article explains,
The Marital Contract Recording Act allows a man and woman who have exchanged marital vows or promises to file with the local county clerk a document recording the fact that they have married.…
The Act is based on the fact that the relationship of a man and woman as husband and wife is not created by an act of the state legislature through licensure. Moreover, the right of a man and woman to enter into this particular kind of relationship is not based on a grant of permission given them by the legislature.
To picture what the Act does, picture a real estate contract between two people for the sale and purchase of a home and the subsequent recording of the deed to evidence the contract. If you can picture that, then you know how the Marital Contract Recording Act works.
This bypasses Tennessee’s illegally revised marriage certificates that now include the genderless options of “PARTNER-1” and “PARTNER-2” as options that can be chosen over “BRIDE” and “GROOM.”
One pastor who strongly favors the Marital Contract Recording Act is Paul Becker, pastor of Concordia Lutheran Church in Kingsport, Tennessee. Recently, Rev. Becker testified in favor of the proposed legislation before the Senate Judiciary Committee. His testimony lasted for just three minutes.
The Ominous Implications of Obergefell
Here is the opening paragraph of the majority ruling in Obergefell, which Justice Anthony Kennedy wrote:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
Does the US Constitution really give people the right “to define and express their identity” in a way that requires marriage to be redefined?
As far as I know, the efforts of David Fowler and the Family Action Council of Tennessee are the only efforts in the nation to contend legally for recognition of natural marriage — marriage as God designed it and defines it. Meanwhile, most people, including most Christians, have absolutely no understanding of what the Obergefell ruling is doing to unravel natural marriage and natural parenting in the United States. Effectively, Obergefell mandates that all marriages, even opposite-sex unions, have to be treated equally. This means they must be treated as a same-sex marriage.
Effectively, Obergefell mandates that all marriages, even opposite-sex unions, have to be treated equally. This means they must be treated as a same-sex marriage.
In an email sent on Wednesday, April 6, David Fowler encourages his readers to listen to attorney Jeff Shafer explain some of the most severe implications of Obergefell in a brief, 6-minute audio clip. Fowler wrote, “Friends, attached is an audio clip of an interview with attorney Jeff Shafer from CrossPolitic, out of Moscow, Idaho. I beg of you to listen to it.” He continued,
But for God’s promise never to abandon his creation that reveals his glory, this would be the most chilling audio I’ve ever heard that provides insight into why the marital contract recording act may truly be the most important piece of legislation pending before any state legislative body this year.
It conforms, in the negative direction, to the positive testimony Jeff gave to the Senate Judiciary Committee about why the legislation is so important and why it is important to take advantage now of the rationale in Obergefell that was clearly limited to statutory law. If we don’t, then we may wander in the wilderness for 50 years like we have followed Roe.
God has given our state the opportunity to make a declaration regarding the true nature of man and woman and marriage and mother and father and parent and child and the family. These are worth fighting for as a matter of faithfulness, even if God does not give us victory in the United States Supreme Court. Like the servant in Luke 12, we will have “done that which was our duty to do.”
Here is the audio clip. You can listen to it here, you can listen to it and read the text of what Jeff Shafer shays here, and
you can download it here.
Copyright © 2022 by B. Nathaniel Sulllivan. All rights reserved.
top image credit: Photo by Jeremy Wong on Unsplash