Common Law Marriage in Georgia (or: Are the Snowdens Married? – Season II)

There are still questions about the validity of the Snowdens’ marriage.  I suppose this will probably come up every single season they are on the show.  So, I guess I’ll just plan on writing a blog post every single season about it (or not).

Lets talk about common law marriage in the Peach State since that is where they were living.  Of course they moved to California, so I’ll mention that as well, but first a little background.  GAA common law marriage is simply a marriage which is not officially documented by the state.  It is also often the case that common law marriages are not accompanied by any sort of ceremony (that is to say, a documented ceremony – by a church for example).  This of course does not mean that the people involved are not married.  It merely means that the state has not entered their union into the state’s archives.  Also of note is the fact that common law marriage is not the same thing as, “living together”, or even as, “living together for a long time (7 years or whatever)”.

If its not the same, then what is the difference? What is the main difference  between, “living together” and being married (whether documented or common law)?  Please don’t say, “a piece of paper”; you’ll make me both sad and nauseous at the same time.

I hope everyone would agree (at least everyone who is married, and therefore knows the difference) that the main difference is the commitment to the relationship.  hand heartThe main difference, and the thing that makes marriage different from “shacking up” (and better too), is the commitment to the other person and to the relationship.  This difference, this thing, this commitment, is something that the state cannot create nor control, and yet it is the key ingredient, the main ingredient, and is in fact the very core of the matter.  You could even say it was the heart of the matter.

How is this commitment demonstrated in the eyes of the law?  The requirements are essentially the same for both documented and common law marriages.  They are something like this:

  1. The parties must be eligible (age requirements, not too closely related, mentally sound, etc.).
  2. Both parties must be freely willing to enter this agreement i.e. they agree to be married.
  3. The parties present themselves to their acquaintances as married.
  4. They live to live together as man and wife.
  5. Must consummate the agreement.

There are several states which have laws explicitly recognizing common law marriage.  The details of the qualifications vary from state to state, but here they are: Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah (Utah has some interesting things to say about common law marriage and polygamy by the way – there’s another post there someday).

However, there is a snag in all of this given that, officially, common law marriage was “abolished” in the state of Georgia in 1997 – but it isn’t remotely so simple.  In the year 2010, the Supreme Court of Georgia actually decided to recognize a common law marriage anyway.  The link to the court’s decision is here if you are interested in the entire thing, but I’ll give you the Reader’s Digest version.

The parties involved were Debbie Jean Ault and James A. Norman.  In 1986, Mr. Norman was newly divorced from his previous wife.  Three years later (1989), Ms. Ault began living in the same home as Mr. Norman (in Alabama), sharing a bedroom, and doing housework. They would both tell people that the other was their spouse, Mr. Norman had sexual relations only with Ms. Ault, and Ms. Ault would often call herself Mrs. Norman.  And, while they never actually had a marriage ceremony of any kind, Mr Norman would repeatedly tell Ms. Ault that, “in God’s eyes, you are my wife.”

A few years later (1998) they moved to the neighboring state, Georgia – together, of course.  By this time Georgia had abolished common law marriages; they were a thing of the past!  There they managed to live happily (or not) until 2008 when he filed a law suit against her demanding she pay him damages (for who knows what).  She responded that she would need money to do that, and that she didn’t want to be withgavel him any more.  So, she simply countered by filing for divorce, alimony, and an equitable division of assets. Ouch.

He said she couldn’t do that because, 1) they were never married to begin with and, 2) Georgia doesn’t recognize common law marriages.  The Supreme court of Georgia did not agree with Mr. Norman on either count.  Ms. Ault was awarded $54,000 as lump sum alimony.

Why did this happen?  Judges are usually very clever, and they will try to make decisions as narrowly as possible, so as to affect as little of the existing framework of laws as possible.  For them, the fact that Georgia had abolished common law marriage was inconsequential.  They did not even need to address this issue.  Rather, they looked to the “Full Faith and Credit Clause” of the U.S. Constitution (Article IV, Section 1) which says that all the states must respect “public acts, records, and judicial proceedings of every other state.”

Since the Normans lived together as man and wife in Alabama, and Alabama allowed common law marriages at the time (even tho their marriage was never recognized by Alabama), then it follows that the state of Georgia should honor the marital status which the Normans attained while living there. Tada!

Another obvious exception would be the case of couples who contracted a common law marriage in the state of Georgia prior to 1997.  These relationships would all be recognized as valid marriages if there were ever a similar challenge brought before the court.

Despite abolishing common law marriage, Georgia officially accepts them from other states, and accepts them in their own state prior to 1997.  So, what does this mean for a Georgia couple in 2019, that want to have a common law marriage?  It means that their marriage will also be accepted in Georgia, and it means the same thing in California, and in every other state in the union.justice

How could it be otherwise?  How could they have have equal treatment under the law otherwise? Equal treatment is protected by the 14th amendment to the U.S. Constitution (the equal protection clause). There is no way the state could defensibly accept a common law marriage (along with granting all the privileges that accompany that condition) entered into on the 31st of December 1996, and deny one entered into on the 1st of January 1997.  You cannot give different treatment to people who are similarly situated.  The Georgia law would amount to discrimination based upon age.

The current law essentially says, if you were born in the 80s or later, you cannot contract a common law marriage, even tho your parents did, and your older siblings (who were born in the 70s) did.  It is ludicrous to think that the state can abridge a fundamental right at all, and marriage is absolutely a fundamental right – which means it resides with the people and not the government.  There is no logical way around it. If it were challenged, the law abolishing common law marriage it would obviously fail.  The only reason it is still on the books is because it hasn’t been challenged.

Common law marriage is at the very heart of the idea of marriage.  Marriage is a contract; an agreement entered into by a man and a woman for the purpose of creating a family and propagating the species.  The very core of the matter is: who decides that two people can marry?  The people themselves, or the state?  You can’t get rid of common law marriage by any legislation without also getting rid of marriage itself (and this would only happen in a totalitarian, Orwellian nightmare of a world).  It is the foundation upon which all real marriages are built.

The piece of paper – the government documentation – is only a wrapper placed around the core.  All documented marriages are also fundamentally common law marriages at their center ( I say “all” in the sense that the vast majority of them are – there are always a few exceptions, but this is beyond this post.  maybe next season, haha.).  The center is a man and woman casting their lot together, promising to stay that way, and beginning a family.

For the sake of illustration, let me make a comparison to another fundamental right: life.  For most people in the U.S., when they were born they (actually, their parents) were issued a birth certificate by the state in which they were born.  What if the State of Georgia made a law saying they were no longer going to recognize births in the state?  I know this sounds ridiculous, but stay with me.  The new law said that there would no longer be state issued birth certificates.  Would this mean that a baby born in Georgia, after the passing of this law, was not really born, or not really alive because they didn’t have official recognition from the state (or from the church for that matter)?  Of course not!  That would be crazy, right?  The child would be born regardless of what the state said (or didn’t say) about it.  Furthermore, that child would have all the rights that any other natural born citizen would have.

It is true that not having a birth certificate can make life more difficult when it comes to legal matters (and I personally know of some people who have experienced this), but that is a separate issue entirely.

If Georgia stopped issuing birth certificates, it wouldn’t stop people from being born. The state has no say about that.  May it ever be so!  Similarly, the state has no say about marriages.  They may decide not to issue papers, but it would have no effect whatsoever on whether the person was born, or whether a man and woman were married.

Pioneer Day

Happy Pioneer DayFrom its very beginnings, Mormonism seemed destined to attract ridicule and persecution of every variety, of every intensity, and from every direction —  be it religious, secular, or political.  Even Mormonism’s founder, Joseph Smith, noted about himself:

It seems as though the adversary was aware, at a very early period of my life, that I was destined to prove a disturber and an annoyer of his kingdom; else why should the powers of darkness combine against me? Why the opposition and persecution that arose against me, almost in my infancy?

Whether you agree with the doctrines and practices of Joseph Smith and Mormonism (and there is much to disagree with no doubt – for many of them are strange, and even offensive), the horrible abuse and religious persecution of the Mormon people at the hands of their oppressors (which included not only private persons, and mobs, but also state and federal governments) was shocking, horrific, and is completely unparalleled in the history of the United States.

Since the very beginnings of Mormonism in the state of New York, they were often treated harshly by their neighbors.  This mistreatment, which involved everything from mistrust and slander to murder and rape, caused the body of the Church to move from one place to another—to Ohio, to Missouri, to Illinois, and finally on to the land that would become Utah.  In fact, murder of Mormons was still officially sanctioned by the state of Missouri until June of 1976.

Being abused and driven continually from place to place quickly becomes old, and can be tolerated for only so long.  In all these tribulations the Mormons had petitioned the government (both state and federal) several times to aid them in their plights.  Perhaps most famously President Van Buren is reported to have said, when asked for aid, “Gentlemen, your cause is just, but I can do nothing for you. … If I take up for you I shall lose the vote of Missouri.”  Oh, the politicians!

KOG flag

The first wagon company entered the Salt Lake Valley on July 24th of 1847.  Brigham Young stated then that if they would be left in peace for 10 years, they would ask nothing further of the government.  Ten years later to the day, on July 24th of 1857, the saints were celebrating Pioneer Day up Big Cottonwood Canyon at Silver Lake, with the Stars and Stripes flying in the breeze, when word came to the territory of Deseret that the United States was sending an army to crush a supposed Mormon rebellion.

31star

 

Of course the rumors of rebellion and lawlessness in the territory were exaggerated well beyond the point of lies, and were used as false pretense for military action.  Ultimately this proved very costly for the government, and embarrassing for President Buchanan (the Utah War is sometimes referred to as Buchanan’s Blunder).  The real reasons for sending a sizable chunk of the army into the western wilderness was all done for political reasons and had nothing to do with the disloyalty of the Mormon people (for they were not disloyal to the United States – and never have been).  Rather, the reasons had to do with the impending civil war (the massive military force, trudging across the plains at this critical time, left many federal arsenals and military stores unprotected in the South), and the recently adopted Republican Party platform (adopted at the GOP convention of 1856 in Philadelphia) to rid the US of:

“the twin relics of barbarism,

polygamy and slavery“.

After receiving the news about the approaching army Brigham Young told the people to finish their Pioneer Day celebrations, and then they began making plans and preparations.  The plan they decided on was to stall the army, thru bloodless guerrilla warfare, as long as possible from entering the territory (the stories of Lot Smith and Porter Rockwell are fascinating and entertaining, but sadly too long to relate here).  This was to buy them time to clear up the misunderstandings, misrepresentations, and outright lies that were circulating in the East about the Mormon people.  Ultimately, the plan was carried out in a brilliant manner, and was successful in its aims.

Here is what Brother Brigham had to say about the situation:

It is a pretty bold stand for this people to take, to say that they will not be controlled by the corrupt administrators of our General Government.  We will be controlled by them, if they will be controlled by the Constitution and laws; but they will not.  Many of them do not care any more about the Constitution and laws that they make than they do about the laws of any other nation.  That class [of people] trample the rights of the people under their feet, while there are so many who would like to honor them.  All we ever asked for is our Constitutional rights.  We wish the laws of our Government honored, and we have ever honored them; but they are trampled under foot by administrators.

And furthermore:

I do not lift my voice against the great and glorious Government guaranteed to every citizen by our Constitution, but against those corrupt administrators who trample the Constitution and just laws under their feet.  They care no more about them than they do about the Government of France, but they walk them under their feet with impunity.  And the most of the characters they have sent here as officers cared no more about the laws of our country and of this territory than they did about the laws of China, but walked them under their feet with all the recklessness of despots. – Millennial Star, No. 3, Vol. 20, pg. 33

So remember this Pioneer Day, that this day is about religious liberty as much as it is about settling a strange land and making the desert blossom as a rose.  I leave you with the inspiring words of Connor Boyack, who wrote a beautiful guest opinion for the Daily Herald (the original article can be found here).  His words are reproduced here in their entirety:

July 24 is Utah’s second summer celebration of independence. On this state holiday, we remember the pioneers who on this date in 1847 arrived in the Salt Lake Valley to settle the area.

Fleeing from a mob and exiting the borders of the American states, Brigham Young and his Mormon followers started a new society in the desert, independent from the government that had forsaken them. In a letter to the U.S. president summarizing their intent, Young declared:

“We would esteem a territorial government of our own as one of the richest boons of earth, and while we appreciate the Constitution of the United States as the most precious among the nations, we feel that we had rather retreat to the deserts, islands or mountain caves than consent to be ruled by governors and judges whose hands are drenched in the blood of innocence and virtue, who delight in injustice and oppression.”

There are many reasons for which the early Latter-day Saints were persecuted, religious discrimination and concerns about concentrated political power among them. Of course, polygamy also played a role; it was only a few years later that the Republican Party was founded, focused on the abolition of two “barbarisms”: slavery and polygamy.

The decades that followed saw increasing intervention into this polygamous lifestyle by federal agents enforcing newly enacted laws against what had by then become the territory of Utah. LDS Church leaders went underground to avoid prosecution, and Mormon culture became insular and to some degree anti-government, so much so that the “Mormon Creed” was born and widely used, even featured as art in one LDS temple.

That motto? “Mind your own business. Saints will observe this, others ought to.”

The rest is history, but forgotten history for many in Utah. Raids against and imprisonment of many of our ancestors is so far distant from today’s society that it doesn’t get much attention.

It should — if for no other reason than the fact that many plural families continue to live amongst us, practicing their faith and living as best as they can, branded as they are as felons by their own government. We can more appropriately honor Utah’s polygamist pioneers who stood up for what they believed in, on Pioneer Day and every day, by not perpetuating the same oppressive policies against which they protested.

We’re all aware of the examples of abuse, fraud, and outright perversion in some polygamous circles. This does not, however, justify widely branding a population to which so many of us have a close connection.

In other words, a few bad apples doesn’t mean the whole bunch should be tossed out. There are numerous examples of consenting adults and loving families creating a safe and supportive environment for their children and one another.

Utah’s celebration of Pioneer Day is inherently connected to polygamy; the day is a memorial of unfair persecution based on religious and cultural differences. For a modern society that claims to increasingly support diversity and inclusion, the continued persecution of the posterity of the very people for whom the holiday exists stands as a hypocritical anomaly worth pointing out.

A modern leader in the LDS Church had something to say about this:

“Our pioneer ancestors were driven from place to place by uninformed and intolerant neighbors. They experienced extraordinary hardship and persecution because they thought, acted, and believed differently from others. If our history teaches us nothing else, it should teach us to respect the rights of all people to peacefully coexist with one another.”

The very state government that has institutionalized this holiday, and that was created by those persecuted in part for their support of polygamy, now criminalizes this lifestyle as a felony. Separate laws allow for the prosecution of those actually guilty of a real crime — sexual abuse, fraud, neglect, etc. Going further to punish a consenting adult relationship is inherently unjust.

Yes, let’s celebrate Pioneer Day (or, for some, pie and beer day), but let’s take up the torch of the pioneers we celebrate by putting an end to the oppression from which they fled, and which many of their posterity are subjected to still.

Connor Boyack is president of Libertas Institute, a free market think tank in Lehi, and author of 14 books.

Happy Pioneer Day!

Are the Snowdens Married? (Or the Alldredges, or the Brineys?) – What is Marriage?

In the first episode of Seeking Sister Wife we are introduced to the Snowden family, Dimitri and Ashley.  A little after 7 minutes in Dimitri tells us that after dating for 2 years they, “Committed [themselves] to each other.” Additionally, on TLC’s, Meet The Families of Seeking Sister Wife, page we learn they have purposefully abstained from a legal marriage under the eyes of the law in order to ensure equality with their future wife.  They consider one another spouses, they have 3 children together, they share finances and many other things, and they also let us know that they have no marriage license from the state of Georgia (or any other state).

We Committed

In light of the several comments and questions my posts have generated (see here and here) about the nature of marriage – especially in the Snowden family, but also in the Alldredge and Briney families as well (and all other plural families too), I have decided to write a post on my views about what constitutes a marriage.

A few years ago (November 2015) some friends of mine decided to rededicate their marriage.  They threw a big party and asked if I would “officiate” at their ceremony.  It was a relatively informal event; I said a few words, and they renewed their vows with each other.  It was a beautiful thing, but the reason they were doing it was a bit disappointing.  You see, they had just left the LDS Church (the reason why is unimportant to this post), and the validity of their Church marriage (specifically their sealing – more about this later) was being called into question by some of their acquaintances.  This is sadly not an uncommon occurrence.  When the Church kicked us out we had the same experience.  Concerns were expressed to us that we had broken our covenants and now we were adulterers, had lost all our blessings, no longer had the Holy Ghost with us, etc.

This post, and my future post about the Mormon concept of Sealing, are adaptations of the words I prepared for that marriage rededication ceremony.  Here it goes:

In 1774, Thomas Jefferson said these words, “A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.” This was two years before the Declaration of Independence.  At the time these were radical words – treasonous words even.

The common model of government at the time was that no rights existed for the common people – except those granted to them by the King.  The King owned all the land, the people were subject to his mandates, and any privileges the people had were granted to them by their Sovereign Lord.  He in turn received all his power from God by virtue of the Divine Right of Kings.  Alas, there are many unfortunate parallels between government and religious authorities.

As powerful as they think they may be, governments are run by men – mortals all.  Governments do not possess any powers unless those powers have been delegated to it by the people who are governed.

The preamble to the Declaration of Independence correctly proclaims this fact.  It reads in part:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Eleven years later these ideas were crystallized in the Constitution of the United States of America.  It was the fulfillment of the promise made in the Declaration of Independence.  And yet, despite the Constitution being the founding document of our nation’s government, our Constitution is widely misunderstood; and here is the misunderstanding:

constitutional-convention

The Constitution does not grant you the right to free speech.  It does not give you the right to print what you please, or to choose your own religion.  The Constitution does not grant you the right to carry arms for your defense, to assemble or associate with whom you please, or any of the other things we have imagined it to grant to us.

If you will take the Bill of Rights, and actually read it, you will discover that in every case, the rights mentioned are not granted.  It does not say anything to the effect that, “the citizens of the United States are hereby granted the right to worship as they choose…”  No, No!  On the contrary, it says, “Congress shall make no law respecting an establishment of religion…”  It does not say anything like, “you may carry arms for your defense.”  Rather it says, “the right shall not be infringed”, and on and on.

Indeed, the government cannot grant us anything we do not already have – we, in fact, are the ones that have granted powers to the government – the government does not have anything the people have not given to it.  Rather than being granted, all the rights mentioned are protected.  They are not extensions of our privileges, they are limits and restraints upon the government!

Well, what does all this talk about government and rights have to do with marriage?

The truth is: if the government has any authority at all, to marry anyone, then they have received that power from the people, and their receiving of that power from the people in no way diminishes the rights of the people (unless we let it).  The powers are delegated, yet still retained by the people – because they are inalienable.  They cannot be separated from us.  They are inherent both to our being and to our existence.

The sanctity of marriage is reduced by getting the government to protect it.  Orthodox Christian theologian Davd J. Dunn writes,

“Today’s Christian conservatives seem to be worshiping America, or at least a certain idea of it, when they ask the government to protect the ‘sanctity’ of marriage. In doing this, they have vested the state with the power to sanctify…Christians who demand the state take up the task of defending marital sanctity are effectively making the state their god. They seem to think that their local capitol can perform miracles when [in reality] only the Holy Spirit has the power to sanctify.”

Well, there are some, no doubt, who do not feel the same way about things.  They are upset with anyone who does something out of the ordinary.  And in particular with anyone who exercises their rights while ignoring the religious or civil authorities.  There are many who feel that marriages are illegitimate without the approval of the government, or the Church, or both.

But it has not always been that way.

Marriage in the scriptures, and for most of human history, has simply consisted of a man and woman (usually with the consent of the woman’s father), living together and attempting procreation.  No priest, no license, and no registration.  These are all recent innovations within the last 500 years.  The Catholic Church did not require marriages to be officiated by a priest until 1563.  The Anglican Church did not get around to making this requirement until 1753.  For most of human history, marriage has simply been an agreement (contract), recognized or arranged by the immediate families, for a man and woman to live together.

He calls her wife, she calls him husband.  They share a home, they share a bed.  They have and raise children together, and they have cast their lots together for good or ill.  They are married.  Are the Snowdens married?  Absolutely yes!

Does that mean that any two people can just live together and call it marriage?  The answer is no; that’s just called shacking up.  The other elements are required also, namely the commitment to live as husband and wife – with all the duties and privileges that are connected thereto.  Shacking up, without commitment – without the man taking the woman as wife, is sin.

You could classify marriages into three sorts: social marriage, religious marriage, and civil (or government) marriage.  Social marriage is rooted in the ideas of Common Law and Natural Rights, which I have discussed somewhat above.  It has probably been the most common type of marriage thruout the history of mankind, and perhaps the oldest as well (tho this is debatable I am sure).  Either way, it is certain that of the three, civil marriage is by far the late comer to the party.

What about all this business with government issued marriage licenses then?  When did that become a thing, and why?  First, let us take a look at the legal definition of the word “License”.  From Black’s Law Dictionary (2nd edition, published in 1910) we have:

“A permission, accorded by a competent authority, conferring the right to do some act which without such authorization would be illegal.”

In other words, a license is permission to do something which would otherwise be illegal.  The problem is that the Supreme Court has repeatedly affirmed that marriage is a fundamental right for all.  And even without the Court’s decisions, marriage (both monogamous and polygamous) has existed for thousands of years as a fundamental aspect of human life and society which stems from our rights to associate and to contract.  Marriage predates all our modern laws, governments, and licensing requirements. How then can getting married be illegal?  Of course the answer to this question has everything to do with polygamy.  Licensing of marriage by governments had its origins in efforts to stamp out plural marriage among the early Mormon people (and also to prevent interracial marriage – which is beyond the scope of this post).

In closing, here are some questions you may want to ask yourself (or your friends and family – if you like those stimulating sort of conversations).

If my right to marry is fundamental, why do I need permission from the government before I can get married?

If I get a marriage license, what does that marriage license give me permission to do that I could not do before I got the marriage license?

Who is giving me that permission?

Where did they get the power to give me that permission?

And perhaps the most important question,

If I get married without a marriage license, is my marriage still lawful?

When there is no structure available to you, then make your own.  There is no approval needed from any man, or government, or religious institution to get married.  And despite the disapproval that may be shown by some, it is our God-given, and natural right to do so.

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For another post about the Snowden family and common law marriage see here.