Tuesday, May 23, 2006

Law Professor Defends Marriage in Appellate Court: Says No-Fault Divorce Unconstitutional as Applied to Catholics

Just a little while ago, I received the following emailed press release:
Mary’s Advocates
P.O. Box 451382
29737 Schwartz Road
Westlake, OH 44145

Stephen Safranek
Constitutional Law Professor
“True Marriage Project”
(734) 827-8096

Mrs. Marie (Bai) Macfarlane
Mary’s Advocates Founder
(440) 871-5404



Cleveland, OH May 31, 2006 – Constitutional law professor, Stephen Safranek is arguing in the 8th district court of appeals that forcing routine no-fault divorce on a Christian wife and children is unconstitutional. With his “True Marriage Project,” a work of his public interest law firm, Safranek asserts, “promises made by the couple, to be married in accordance with the laws of their Catholic Church, can not be ignored by the civil courts.”

“The no fault system ignores the religious beliefs and practices of the family. Indeed, in this case, the innocent spouse was punished for being on ‘a crusade’ to save her children and family.”

The appellate court case involves William (Bud) Macfarlane, a self-professed practicing Catholic who left his wife Marie (Bai) Macfarlane in July, 2003, and sought a no-fault divorce. The divorce was granted against Bai’s objections, and Bud was given permanent custody of the children. The court criticized Mrs. MacFarlane’s opinions and the Catholic Church’s teachings on the sanctity of marriage in its decision to grant custody to her husband, and to forbid her to continue homeschooling the children.

Mrs. Macfarlane laments: “I was forced to stop homeschooling because the court psychologist stated it was bad after second grade, despite the fact that my children scored well on standardized tests. My youngest child is in daycare although I want to care for my children at home. Now, I have no right to make any decision regarding their upbringing. Finally, although we as a family poured our lives into building a non-profit foundation, my husband runs it and I have been ordered to get another job.”

“The court’s ruling gave the father, who works full time, permanent custody and their stay-at-home mom visitation time,” her lead attorney, Safranek said. “This occurred despite the fact that the father did not have a single family member or friend or even an employee who could testify on his abilities to serve as a custodial parent. However, a veritable blizzard of family and friends testified on behalf of Mrs. MacFarlane.”

Mrs. MacFarlane hopes her husband will be ordered to follow the arbitration process required by his church law before seeking civil divorce. “Courts order people to follow the rules they choose in their own contracts everyday; marriage should be no different,” says Mrs. Macfarlane.

Mrs. MacFarlane has taken her case on a parallel track before the Church Tribunals and she is publicizing all these efforts on her website.

- END -

UPDATE (24 May 2006)
Mrs. Darwin (with a link to this blog - Thanks!) has some very interesting observations about this case.

Previous Pro Ecclesia posts on this subject:
Legal Appeal Challenges Civil No-Fault Divorce

Ohio Woman Seeks Reform of US Divorce Law


At 5/23/2006 8:48 PM, Blogger Publius said...

To be frank, I just don't buy it and think it would be a disaster if SCOTUS did. It's one thing for the courts to prevent the state from infringing on the free practice of religion, it's another thing to mandate that they enforce the principles of religion. If SCOTUS agreed with this and said that the courts had to provide Catholics with special covenant marriages (or even to enforce normal marriages as if they were covenant marriage), it would be very hard (if not impossible) for them to deny a right to gay marriage. Here's how: a gay couple who belong to a pro-gay marriage church that still believe fornication is wrong petition for a right to gay marriage since not being able to enter into a state-recognized marriage prevents them from practicing their religion. They are granted it based on the MacFarlane precedent. Then SCOTUS makes the right universal based on the Equal Protection clause.

At 5/23/2006 8:51 PM, Anonymous Anonymous said...

Interesting point. BUT you still have the public policy issues. The press release is obviously not quite accurate. See TrueMarriage.net

The question is, can the state deny every aspect of the religious marriage if it has more protections than non religious ones, not less

At 5/24/2006 6:47 AM, Blogger Jay Anderson said...

There are 3 issues that trouble me:

(1) As Publius notes, if marriage is going to be treated like contract law, that opens up a whole can of worms, including a sense that if marriage is no different than any other contract, why not allow same-sex "marriage".

(2) There is already a move in some countries to allow Islamic divorce and marital disputes to be settled by Sharia law. See here, here, here and here. This would give a green light to application of Sharia principles in this country.

(3) One of the major issues in the MacFarlane case is the custody of the children. Such things are determined on the basis of "the best interest of the child", to which contract law is ill suited. That being said - based only on what I have read and on my conversations with Bai MacFarlane (obviously a somewhat biased source, and understandably so) - it seems there was a gross miscarriage of justice in how custody was awarded in this particular instance.

Clearly, no-fault divorce was and is a full-frontal assault on the institution of marriage, and should, for public policy reasons, be abolished. But that's a legislative argument, not a judicial one.

At 5/24/2006 12:23 PM, Blogger MrsDarwin said...

No prob, Jay -- this is a topic that really resonates with me personally, as I can easily imagine that my own family's situation would look something like this to an outsider. If you actually knew the details, of course, your perception of the whole thing would be turned on its head. That's why I'm cautious about accepting just one side of a divorce story.


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