At the heart of the declaratory judgment lawsuit filed today is the issue of who rules the people of Tennessee and, ultimately, all the people of the United States.

Before I explain what this lawsuit actually asserts, let me be clear about what it does not assert. This lawsuit does not deny that the Supreme Court has the power of judicial review. It does not deny the power of a federal court to judge the constitutionality of a particular law. It does not deny that the Supreme Court ruled that our state marriage license law is invalid.

And it is that point which leads to what this lawsuit does assert, namely, how does anyone, regardless of the sexes of the parties, get a valid marriage license pursuant to an invalid law?

The Supreme Court appears not to have contemplated this issue. However, if marriage licenses can be issued notwithstanding the fact the Supreme Court declared the license law invalid, then it would appear that the Supreme Court is asserting a power to declare by judicial fiat a new statutory scheme in place of the old, rather than leaving it to the legislative branch to decide what should take the place of the scheme being stricken. This is not judicial review; this is legislating, a power denied under the state and U.S. Constitutions to the judicial branch under the doctrine of the separation of powers. This is also exactly what the Alabama Supreme Court pointed out in its decision on March 3rd of last year.

Put another way, this lawsuit asserts the simple proposition that an invalid law is no law. And the power asserted by the Supreme Court is nothing less than a power, by court order, to enact or replace a law that it has ruled invalid. This is a legislative power and one that the Constitution, under the doctrine of separation of powers, denies to the judicial branch.

That is why I believe Justice Scalia said in his dissenting opinion in Obergefell v. Hodges that the Obergefell opinion stand for nothing less than the proposition that “my ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” This power is one that the people of Tennessee, regardless of whether they are conservative or liberal, religious or atheists, dare not let the Supreme Court assert without raising the point, for someday the power exercised in Obergefell to judicially foist upon the people and their states a new statute will be used against them.

Let me also address the process chosen by this lawsuit. It is one that is lawful and constitutionally contemplated under the concept of dual sovereignty reflected in the doctrine of federalism. It is not an unusual thing for a state court to be called upon to decide how a decision of the U.S. Supreme Court should be applied to a state law. The Alabama Supreme Court is now grappling with that issue. And, as you know, the case of Tanco v. Haslam, the actual lawsuit against Tennessee that was consolidated for decision purposes with the lawsuits in Kentucky, Michigan, and Ohio, did not involve the Tennessee laws governing marriages performed in state and involving state residents, only the validity in Tennessee of marriages contracted by non-residents of Tennessee who subsequently move to Tennessee.

Should the Tennessee courts rule that Tennessee marriage license law is invalid, then the legislature can decide, what, if anything it wants to do. And if there are those who do not like what the Tennessee legislature does at that time, then they can bring their own lawsuit to have the Supreme Court of the United States address the conflict between our court’s decision, the legislature’s response to it, and Obergefell. That is how the legal process works in a nation of dual sovereigns under the principles of federalism and separation of powers.

We firmly believe that the courts of Tennessee will follow the law the Tennessee Supreme Court has laid down on how to interpret statutes that have been ruled unconstitutional and will respect the separation of powers and the principles of federalism reflected in our Constitution. We believe the system our Founding Fathers will work if given an opportunity to do so.

—David Fowler, Esq.
Attorney for the Constitutional Government Defense Fund

To learn what you can do to support the lawsuit and other efforts to challenge the Obergefell ruling, go to the Reclaiming Our Liberty webpage.