Didn’t the Supreme Court already decide that our marriage license law was invalid?
No. It ruled that a similar law in Ohio was invalid, but that part of the Court’s decision only bound the state of Ohio. It is “fair game” for a Tennessee Court to determine how the Obergefell decision should be applied to Tennessee’s in-state marriage law. Certainly, Obergefell would be precedent for the proposition that our law would be invalid, but this overlooks two things.
First, the Obergefell Court said “state laws . . . are . . . held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” So the natural question is this: How can a law be constitutional “to an extent”? which is what the Supreme Court seemed to say. Former Chief Justice John Marshall, who articulated the “power of judicial review” in Marbury v. Madison, said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”
Second, if the Supreme Court did say our law was invalid, that does not mean that it has the power to “enact” a law to replace the one it struck down. Enacting laws is a power federal courts are forbidden from exercising by virtue of the constitutional separation of powers, and when it comes to enacting state laws, a power they cannot exercise without violating the constitutional doctrine of federalism.
Aren’t you saying that a state court decision can “trump” a Supreme Court decision?
No. The Supreme Court only decides issues between the parties and only the issues before the Court in a particular case. The Tennessee case that was part of the Supreme Court’s decision in Obergefell was Tanco v. Haslam, and the only issue in that case was whether Tennessee must recognize same-sex “marriages” between persons that were then living in another state. As a strict legal matter, the U.S. Supreme Court did not decide how Obergefell should be applied to the marriage license laws in Tennessee governing in-state residents. While Obergefell would be persuasive authority in a lawsuit over the validity of Tennessee’s marriage license law, it is appropriate and constitutional for state courts to determine how Supreme Court decisions apply to state law. State courts do that all the time. If our state court decides that Obergefell invalidated Tennessee marriage license law, then that would be a decision by the highest court to rule on that particular issue until the U.S. Supreme Court rules otherwise.
Is this lawsuit like the one the Alabama Supreme Court has before it and, under which the Chief Justice of the Alabama Supreme Court recently ordered their state officials to stop issuing marriage licenses to same-sex couples?
Yes. The legal procedure by which the constitutional issues have been raised in Alabama is different from the procedure being used here (a declaratory judgment action), but the legal, constitutional issue being presented to our state court to decide is the very same one pending before the Alabama Supreme Court.
I know the statute says that an application for a marriage license must include the name of the “male and female contracting parties,” but won’t the state court just say the Supreme Court struck the words “male and female” and the statute should then be applied but just without those words?
Answer: It shouldn’t do that. Just last March, the Tennessee Supreme Court was confronted with a similar question involving a different law. The Court, in State v. Crank, said, “[W]hen a conclusion can be reached that the legislature would have enacted the act in question with the unconstitutional portion omitted, then elision of the unconstitutional portion is appropriate.” Elision is a legal expression meaning “to remove or delete.”
It is impossible for a Tennessee judge to say with any integrity that when the legislature enacted the law in question in 1995 that it “would have enacted” it anyway without the words “male and female,” because sodomy was still a crime. Moreover, the very same legislature affirmed that it only meant man and woman marriage, because it passed the state’s Defense of Marriage Act the very next year!
If the State can ignore the Obergefell ruling, then why couldn’t the states have ignored the Court’s ruling in Brown v. Board of Education? Isn’t that a case in which the Court told the states what laws they must have?
The two types of cases are completely different. Brown is not a case in which the U.S. Supreme Court affirmatively “passed” an integration law for the states whereas, in Obergefell, the Supreme Court effectively “passed” a new marriage law for the states. All Brown said was that if a state is going to provide a government-funded public school system, it must be open equally to all students.
In other words, Brown struck down statutes segregating schools, but the Court did not have to “pass” and did not “pass” a new law “creating” integrated schools. Once the segregation law was struck down, integration was not a matter of a new law being needed, but of how to go about integration in an orderly fashion. Brown did not hold that federal courts could pass laws. But that is what the Obergefell Court did. The Obergefell Court had to “pass” a new marriage law and purported to “pass” a new marriage law; however, courts cannot pass laws, and that is the point of the lawsuit.
What about Loving v. Virginia? Isn’t this the same thing except it was about race and this is about sexual orientation?
No. Obergefell is not like Loving because the Loving Court did not purport to enact a new marriage law in Virginia; it only struck down a penal law related to mixed-race marriages. There is nothing in the Loving decision that would have prevented the Virginia legislature from repealing its marriage licensing laws and allowing for only common law marriages; however, that would not have served the racist purposes behind Virginia’s law, because, at common law, race was not an element of a common law marriage.
In addition, Loving did not undermine the fundamental reasons underlying the state’s interest in marriage but only “undermined” the state’s racist attitudes. Obergefell undermines the state’s fundamental interest in marriage—the value of children being raised by their biological mother and father—and substitutes the Court’s adult-centric “interest” in marriage. This may or may not be a better public policy reason for marriage laws, but public policy judgments are, by virtue of the separation of powers, committed to the legislative branch of government. Thus, Obergefell is different because it fundamentally transforms the nature of marriage and Loving did not.
To learn what you can do to support the lawsuit and other efforts to challenge the Obergefell ruling, go to the Reclaiming Our Liberty main page. Read the PDF of the Lawsuit that was filed on January 21, 2016.