Is Marriage a Covenant or a Contract? Inquiring Law Students Want to Know

Some law students at Regent Law were recently discussing whether marriage is a covenant or a contract.  The answers were a bit humorous and ranged from taxes to house work:

“I don’t think it’s either really. It’s just a piece of paper that doesn’t matter. Only helps for tax reasons lol”
“It depends on what perspective is being looked at. If it’s for religious reasons it’s a covenant, if it’s the law, it is a contract.”
“To me both are the same thing. Just using different words. They both are an agreement to stay with that person.”
“… from Regent's perspective it is a covenant.”
“Well simply stated a contract can be broken and covenant (looking in the root of the word which is a will ) is till death.”
“Contract...is a legal obligation between two people...covenant is a religious contract between deity and follower.”
“There should be a contract saying if both bring money home both have to do house chores as well - women are not maids or slaves - that be my contract lol.”

So as Christian law students, how should we think about this?  At Regent Law, we begin most discussions by considering the Bible, and working to gain a biblical understanding of legal principles.  So let’s try that first….

The foundation (and the collapse) for marriage are laid out in the first three chapters of Genesis.  Here, the “covenant of marriage was grounded in the order of creation and governed by the law of God,” John Witte, Jr., From Sacrament to Contract: Marriage, Religions and Law in the Western Tradition 7 (1997), and then alienated by both woman and man in the fall.  God explicitly defines a covenant throughout the Old Testament with Abraham, with Noah, and with David, as a vertical promise between God and man that endures to death.  John Calvin used the doctrine of covenant to explain not only the vertical relationship between God and man but also the horizontal relationship between husband and wife.  He argued that just as God draws the believer into a covenant relationship with him, so God draws a husband and a wife into a covenant relationship with each other, and with Him. So marriage is a covenant promise made in the presence of God and a community supporting the couple in that promise. 

So now let’s consider the law on marriage…

We begin by looking to the United States Supreme Court which has declared marriage to be “intimate to the point of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 485 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”  This language has been subsequently quoted in five additional Supreme Court opinions:

Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816, 843-44 (1977); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 70, n.10 (1976); Roe v. Wade, 410 U.S. 179, 210 (1973) (mem.) (Douglas, J., concurring); and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 324 (1967) (Douglas, J., dissenting).  Therefore, religious views are also appropriate for advocates and judges to consider.  
A contract, as these law students worked to allude to, is the bargained for exchange between two capacitated parties.  The law will enforce agreements imposing obligations on people who enter into them.  This contact law became part of social philosophy when social contract political theory took root during the Enlightenment, and so did the idea that marriage is a personal contract, subject to the preferences of the parties and their personal rights.  Therefore, the law will enforce contracts between consenting adults who marry, and will view the marriage as a contract and a status.  This approach has grown to dominate thinking on family and marriage law today, as marital contracts, marital property and marital support are based in biblical foundations stemming from the oneness concept of marriage as a partnership, and will be enforced by the law.

Therefore, these historical threads of covenant and contract serve to demonstrate the deep theological roots of marriage law and confirm that, despite the relationships between people of faith and the state, theology and civil law, marriage as the foundation of society is a concept – and a reality --- that precedes both church and state, and is both a covenant and a contract. 
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Gender Identity Effects on Families

Gender dysphoria and the movement toward gender identity transition has hit families and children with a formidable force.  For years the biggest fallout from the growing transgender movement has been the debate over the use of private spaces, especially bathrooms and locker rooms, protection of which the Family Policy Alliance has been at the forefront.  Their work demonstrates that while that debate will continue, the demands are getting much broader. They look at recent events which reveal a stunning array of concerns related to the family:

1.      Assault: A kindergarten girl was recently assaulted in the girls' bathroom after a Georgia school allowed elementary school boys, who claim to have a transgender identity, into girls' bathrooms.

2.    Adult Entertainment in Educational Institutions: Libraries and schools across the country have drag queens, otherwise considered adult entertainment, to conduct children's story times.

3.     Keeping Information Secret from Parents: The New Jersey Department of Education recently directed schools to keep vital information about a child's gender identity secret from parents. When a parent has a disagreement with his or her child's gender identity choice, school staff are urged to review information on reporting child abuse by that parent against his or her child.

4.    Forced Intimate Services: A transgender-identifying man is suing a women's spa in Massachusetts for declining to give him a wax of his private body areas, using a court to force a female employee to provide intimate services to a man.

5.     Erasing Criminal Records: A man has sued to get a court to erase his criminal record. Now living life as a woman, he argues that his criminal conviction as a man discloses his gender identity change and is therefore unfair and discriminatory.

6.    Saving Money on Insurance: A man has admitted to lying by claiming to be a transgender female so that he could save money on car insurance.

The current federal government, however, has begun to pay attention to these concerns in three important areas: 

Prisons: The Federal Bureau of Prisons now averts placement of transgender inmates with the opposite biological sex to protect women from exposure to degradation, harassment, and assault.

Military: After intense study the Department of Defense and Department of Homeland Security have determined that admitting transgender-identifying individuals into the military was fundamentally unfair, cost prohibitive, and ultimately compromised the mission of the armed forces.
Schools: The current Department of Health and Human Services is working to make the law clear that sex is an unchangeable scientific fact.

These events reveal that a formidable movement toward national gender identity change is placing a great deal of pressure on children, parents, individuals and particularly families.  Informed families making good choices and parents who discuss these things with their children can make all the difference in handling these scenarios in the future.


Strengthen Marriage with an Express Agreement

Marriage is the beginning of a new entity where two people unite their lives together for a common purpose.  That adventure, however, can get challenging, and the will to continue can weaken, but an oath and an agreement can make all the difference. 
Integrating the concept of an express written agreement under the authority of state code or faith governance can be very effective.  A group called Mary’s Advocates is working to do just that through the True Marriage Proclamation.   
This Proclamation is much like a covenant marriage statute adopted in Arkansas, Louisiana, and Arizona - see A Comparative Survey of Covenant Marriage Proposals in the United States, 12 Regent Law Review 31 (1999) – where an Oath combined with a particular set of rules that the parties agree to that encourage and require counseling and consideration support the parties to a marriage with their own pact.  The True Marriage Proclamation endorses lifetime vows.
When couples create and sign an oath of their marriage vows with the True Marriage Proclamation they are choosing publicly to connect norms of their self-determined obligations in being Catholic when contracting marriage, with principles of civil law for enforcing contracts, upholding rights of religious freedom, due process, and fundamental liberties, all of which are required by law to be afforded strict scrutiny and protection under our Constitution.  The language in the True Marriage Proclamation not only endorses this, but empowers third party accountability for the parties, settling and endowing these rights and duties upon the married couple by outright ownership of those rights and duties, while allowing that couple to each celebrate the wonderful gift of a spouse, the new adventure of their marriage, and their explicit understanding of how it all changes life forever.  Mary’s Advocates also provide a slightly different version for those who marry in any Christian tradition and want to name God’s Word, the Bible, as their authoritative text and the Institute for Christian Conciliation as their arbitrators.
While the concept of a legal agreement has been discussed on this BLog in the context of marital reconciliation in  Understanding and Encouraging Realistic Reconciliation in an Age of Divorce, 32 VBA J. 8 (June/July 2006), the Proclamation does so before and during marriage of couples who want to make their intentions absolutely explicit.  Strengthening marriage with an express agreement is a great idea.


Abortion Clinic Regulations Must Protect Women & Children

How important are abortion clinic regulations to the safety of you and your family? The independent film, Gosnell: The Trial of America’s Biggest Serial Killer, currently playing in theaters, tells the disturbing story of how an unregulated abortion clinic in Pennsylvania led to the most prolific serial killer in American history.  Dr. Gosnell killed hundreds of infants born alive during abortion procedures for many years, but in May 2013, he was convicted of first degree murder in the deaths of three of the infants and involuntary manslaughter in the death of Karnamaya Mongar, a young immigrant mother. 
Excellent investigators and lawyers made this happen.  Along with those verdicts, Dr. Gosnell was also convicted of 21 felony counts of illegal late-term abortion, and 211 counts of violating the 24-hour informed consent law. After his conviction, Gosnell waived his right to appeal in exchange for an agreement that the Commonwealth of Pennsylvania would not seek the death penalty against him.  Rather, he was sentenced to life in prison without the possibility of parole.
Incredibly, many state officials want to make it possible for the same type of horror that Dr. Gosnell passed off as care to happen to women and children in your city.  For example, after years of regulatory efforts under the McAuliffe administration to significantly undercut the common-sense health and safety standards for abortion centers, Virginia legislators and administrators are weakening regulation on abortion clinic services even more. 
Virginia’s Family Foundation has filed an ongoing lawsuit against the Virginia Board of Health to protect women and children from abortion harm.  Earlier this month, the Board of Health published an official Notice of its intent to eliminate regulations governing abortion center standards in ways that are truly unprecedented.
Rather than allow abortion centers to be free from regulatory influence, states have a duty first and foremost to protect its own citizens, which includes the women and children who enter those clinics.  The Rise and Fall of Women’s Rights: Have Sexuality and Reproductive Freedom Forfeited Victory? details this and other problems with abortion, outlining the jurisprudence that simultaneously upholds and weakens life protections.  Family restoration abhors abortion, and yet abortion clinic regulations should be important to every family, as every state has a primary duty to protect its citizens from harm.   


Partnership or Marriage?

Last week the United Kingdom (UK) Guardian reported that to eliminate discrimination Prime Minister Teresa May directed that heterosexual couples may now enter into civil partnerships if they do not wish to marry.
"Every couple in England and Wales will in future be able to choose between a civil partnership and marriage when they formalise their relationship, the prime minister has announced. Ending months of uncertainty following defeat in the supreme court, the government has agreed to extend civil partnerships – available to same-sex couples since 2005 – to everyone." 
According to this new directive, the expansion of marriage has created an intimacy conundrum and further discrimination.  This was predicted nearly two decades ago in How Will the Proliferation and Recognition of Domestic Partnerships Affect Marriage? 4 J. Fam. Stud. 105 (2002).  Could it indeed be that The First Amendment, Homosexual Unions, and “Newspeak”: Has the Language Surrounding the Marriage Debate Altered the nature of Marriage Itself, or Affected the truth of the Issues Inherent in Alternative Marriage Demands?  4 Liberty U. L. Rev. 593 (2010). 
While this decision by the UK Prime Minister may reduce the discrimination felt by heterosexual couples who would rather not marry, it does not necessarily support family restoration.  Instead, this decision moves a nation toward greater fluidity and less stability in personal sexual intimacy, a move that will not benefit the stability children need to accommodate their best interests. 


Family Legacy Making

"You can accomplish anything in life if you work hard for it. I love you!" - Drew Brees to his kids upon becoming the NFL All-time leading passer.

Last night New Orleans Saints Quarterback Drew Brees became the NFL's All-time Passing Leader.  Moments after achieving that landmark feat, Brees ran over to his family on the sidelines, hugging and kissing his wife and children.  Sharing his joy with them, he spontaneously imparted three key life lessons all great parents want their kids to know:
 - "You can do anything!" 
 - "Always work hard to do your best!"
 - "I love you!"
Brees placed his priority on his kids' lives and their future, even as he reached his own pinnacle of success.  As you think of your own family legacy, consider this simple yet profound example.  Family restoration begins with you and I, and we do not have to be an NFL leading quarterback to leave a family legacy. 


From Nominees to Cakes - The Family is under Attack

This week has revealed with particular clarity how gravely the family in America is under attack.  From accusations against a Supreme Court nominee to a gender transition cake, here are just a few things (listed in reverse order) to consider:
1)     Even after the Supreme Court of the United States ruled in favor of Jack Phillips and his case that he could not be compelled to create a custom same-sex wedding cake against his personal faith beliefs, the state of Colorado is fining Jack again, this time for not creating a custom “gender transition” cake. This is significant because individuals’ and families’ religious freedom are constitutionally protected.
2)      California governor Jerry Brown signed into law yesterday California’s End of Life Opinion Act, SB 282, which allows any person to “aid, advise, and encourage” suicide under the state’s assisted suicide law. Until now, these actions were felonies, as the state had a longstanding policy to protect people from self-harm. This law grants complete legal immunity to anyone who facilitates the death of someone who is deemed terminally ill if untreated. This can be very dangerous to families, and particularly to women who tend to be family caregivers.  See Women and Assisted Suicide: Exposing the Gender Vulnerability to Acquiescent Death, 4 Cardozo Women’s L. J. 241 (Winter 1997)(with Britney N. Brigner). This new law is significant because suicide destroys individuals and their families.
            3)     In efforts to be more inclusive, Azusa Pacific, a Christian University in California, has seemed to change its policy on permissible sexuality as from married male & female couples only to include sex between same sex relationships.  This is significant because sexual purity is a principle of marriage and family under foundational Christian faith.
4)  Children's Hospital Colorado decided to drop sex designation from patient wristbands after it created a "gender diversity task force." While still treating patients in relation to their birth sex as it relates to medicine, the hospital says it made the change in order to recognize "unique gender identity." Read more at Fox News.  This is significant because gender confusion can damage individuals and their families.
            5)   The Washington Post recently celebrated letting toddlers ‘choose’ their sex This can attack parents’ ability to look out for the best interests of their children.
            6)  California also passed a law allowing 12-Year-olds to get tax-paid transgender treatments. This law assaults family autonomy, parental rights, and the best interest of a child.
            7)  Earlier this summer it was discovered that the U.S. Food and Drug Administration (FDA) signed a contract with a procurement organization for human fetal tissue, otherwise known as baby body parts, to be used in experiments with mice. The baby body parts are being used to create “humanized mice,” essentially mice with human immune systems. This means that the FDA is using aborted babies and tax dollars to support the creation of rat-human chimera for drug experimentation and testing.  Annually, over 600,000 abortions occur across America, creating a huge amount of human baby body parts.  This federal government contract inadvertently encourages abortion providers to mislead women about what will happen to their babies once the child is aborted. This is significant because abortion and the experimentation with human baby body parts works to destroy humanity, the sanctity of life, and families.
            8)  Finally, Prof. Christine M. Blasey Ford,  the chief sexual assault accuser against Supreme Court Nominee Brett Kavanaugh, has researched and published extensively on the benefits of the abortion drug, Mifepristone, also known as RU-486.  Many on all sides of the debate on abortion see this nomination as key to upholding either abortion rights or the protection of the sanctity of human life.  The professor’s articles include: Trough Plasma Concentrations of Mifepristone Correlate with Psychotic Symptom Reductions: A Review of Three Randomized Clinical Trials (Current Psychiatry Reviews Apr 2013); Efficacy and Safety of Mifepristone for the Treatment of Psychotic Depression (Journal of clinical psychopharmacology Jun 2011); Corrigendum to “A Multisite Trial of Mifepristone for the Treatment of Psychotic Depression: A Site-by-Treatment Interaction” [Contemp. Clin. Trials 30 (2009)284–288]; A multisite trial of mifepristone for the treatment of psychotic depression: A site-by-treatment interaction (Contemporary clinical trials Apr 2009). Each of these articles linked here seem to indicate that drug induced pregnancy elimination reduces depression by terminating the pregnancy and the unborn child.  Each article can also be found at the professor’s ResearchGate page.  One media outlet has found that as a result of this research the professor “has profited from abortion.” Additionally Natural News has reported, that Ford “works for a pharmaceutical company that manufacturers an abortion pill drug, whose profits could be strongly impacted by future Supreme Court decisions on abortion rights. Corcept Therapeutics manufacturers and markets an abortion pill drug called mifepristone, and Christine Blasey Ford is a co-author of at least eight published scientific papers produced by the pharmaceutical giant to promote its pills. ... Blasey’s name [is] listed on several publications at this Corcept.com web page detailing their research papers. Corcept Therapeutics, Inc., a $166 billion market cap company (stock symbol CORT) reportedly has current annual sales of $216 million. The company offers just one drug, mifepristone, which is widely known as an abortion pill or RU-486.”  This is significant because abortion destroys individuals and families.
The destruction of the family is generally always surrounded by sex and money and mendacities about both.  These attacks on the family listed here can result in years and years of family destruction.  You are not imagining it – the family is indeed under attack.


Families and Transgender Confusion

Transgender issues have seemed to become an important consideration in high schools and clinics across America.  Breakpoint, a publication of the Colson Center, recently covered the push toward child gender change, noting that The Economist recently reported a flood of adolescent girls seeking treatment for gender dysphoria over the last eight years.  “Transgender identity has become a trend, as ‘droves of adolescents, with no prior history of gender confusion,’ are suddenly announcing they’re transgender after ‘immersing themselves in niche websites,’ or ‘after similar announcements from friends’.”  This confusion has been identified as “social and peer contagion,” as in “some teenage circles, particularly among girls, it’s reaching epidemic proportions. In a third of the peer groups researched, half or more of the individuals involved came out as transgender. To put this in perspective, less than one percent of Americans aged 18-24 identify as trans. In fact, gender-transition is not only fashionable, “Most children,” says the Economist, “who came out became more popular as a result”.”

Cases such as In re JNS of an Ohio questioning teen present some challenging concerns for the best interests of the child standard, as there the court declined to make any decision on custody or gender transition, but rather demurred, ordering all parties to wait for the child to reach the age of majority.  The judge expressed grave concern that 100% of the clinic’s questioning patients, all children, were recommended by them for gender reassignment surgery, according to the doctor treating the child JNS.  Children can get caught up in trends from those they trust, including peers, doctors, teachers, and extended family.

A faith perspective sheds valuable light on the matter of gender identity.  Christianity embraces the concept that body and soul together form an integrated unity, that each human being is an embodied soul, rather than one individual in a misfitted body.  Holding that the biologically engendered human body is teleological, people of faith view one’s body as having a structure and purpose ordered for male or female sexuality. 

Transgender people may feel they are trapped in ‘the wrong body’ and sense a mismatch between physical sex and psychological gender, experiencing gender dysphoria.  Facebook, for example, has over fifty different genders with which users may identify.  Transgender advocates might argue that gender identity is not rooted in biology, but that gender identity is independent from the body.  Others may argue that gender is merely a social construct, a product of social forces, where “gender is one’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves.”   This notion has been expressed in constitutional jurisprudence in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence of meaning, of the universe, and of the mystery of human life.”  Sexual orientation and gender identity laws, however, may seem to open opportunities for some children and parents, or they may actually work to place heavy pressure on those children and parents who may be struggling with gender dysphoria to begin transitioning process through hormones and surgery. 

Children and their families need places where they can be safe to find hope and restoration, and the freedom to think through the best process for a child whose body is constantly changing during adolescence.  Courts are available merely as a last resort to help heal and restore those conflicts, rather than to tear apart families over them, as noted in JNS, to “give a voice and a pathway to youth similarly situated as JNS without attributing fault to the parents and involving them in protracted litigation which can and does destroy the family unit.” 

Family restoration encourages children and parents to wait and rethink such a dramatic decision.  As Breakpoint stated,

… Transgender ideology today will gladly sacrifice a teen’s true health on the altar of life-altering decisions like hormone therapy and even gender reassignment surgery. We must support our own teens in understanding who they are. They must know that their identity lies not in the latest mixed-up gender ideology or in keeping up with their friends’ fashion choices, but only in the God Who created us male and female.