The Unconstitutionality of No-Fault Marriage—Why Family Day is Needed

President Bush declared the 24th of September as Family Day. In his September 20, 2007 proclamation, President Bush said the following:

“Families are the cornerstone of our Nation. On Family Day, we underscore our dedication to strengthening America's families and recognize the importance that the bonds between parents and children hold for the future of our country.

“Parents and family members are the first and most important influence in a child's life. Families offer a stable and nurturing environment by providing love, guidance, support, and comfort. They help young people gain the skills they need to succeed in life and the courage and drive to realize their dreams. By caring for and spending time with their children, parents instill lifelong values and help build a better America.

“My Administration is committed to supporting American families. We are working with faith-based and community organizations to promote healthy marriages, responsible fatherhood, and positive youth development. When children are connected to family, community, school, and places of worship, they are more likely to make good choices and reach their full potential.

“Families help prepare children for the opportunities and challenges of the 21st century by encouraging them and insisting on high standards. Strong, loving families help young Americans grow into successful adults and build a Nation shining with optimism.

“NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim September 24, 2007, as Family Day. I call upon the people of the United States to observe this day by engaging in activities that strengthen the bonds between parents and children.”

While President Bush calls on the nation to honor traditional families, Marie MacFarlane, founder of Mary's Advocates fights for her children. MacFarlane's children were removed from her custody when she refused to send her children to public schools. Her children had been home-schooled until the no-fault divorce. Being a faithful Catholic, both her wedding vows and her children's education conformed to the Church’s cannon law. Ohio's no-fault laws enabled her husband to walk away from the responsibilities to their marriage and obligations to their children without legal consequence. As a result, she is deprived of economic resources and her children, according to Catholic journalist Jay McNally.

In this complicated case, three issues are being decided that will affect many Americans like Marie MacFarlane. One of those issues is whether no-fault marriage is constitutional. A second issue is whether the state has the right to disregard religious vows made as part of a marriage contract. A third issue is whether separation of church and state applies to religious marriage contracts.

Bill Bailey, associate professor of Family Sciences at the University of Arkansas, had the audacity to claim that the religious vows agreed upon in MacFarlane's marriage contract should be null and void because of Separation of Church and State. The problem with this view is that Separation is an unconstitutional belief with no legitimate legal status. This is what the historical development of Church-State Separation clearly demonstrates, according to legal scholar Philip Hamburger. The fact that 19th century liberals attempted several times to pass a constitutional amendment that would have redefined religious freedom in terms of an absolute wall of separation in both federal and state constitutions proves separation is not, not ever has been, the stipulated meaning of the First Amendment. Besides this fact, Stephen J. Safranek, pro bono attorney for Marie and founder of TrueMarriage.net, explains how prior to no-fault marriage law government acknowledged and upheld church authority over marriage contracts. This union of church and state dates back to colonial era.

No fault marriage may be law, but when it negates free exercise of religious beliefs, negates nuptial contract agreements whether based on church rules or not, and negates relational responsibilities such as paying alimony, then no-fault marriage law must be regarded as unconstitutional and illegal.
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1. Philip Hamburger. The Separation of Church and State. Cambridge, MA : Harvard University Press, 2002. When he wrote this book, Hamburger was the John P. Wilson Professor at the University of Chicago Law School, where he was the Director of the Bigelow Program and the Legal History Program. He now is the Maurice and Hilda Friedman Professor of Law at Columbia University.