The lawsuits to challenge Obergefell v. Hodges had the following advantages over the Legislature trying to “nullify” the U.S. Supreme Court’s ruling in Obergefell v. Hodges:

  • kept local officials from being sued in federal court and hauled off to jail for contempt for not obeying a federal court order,
  • allowed concerned Tennesseans to fight the really important legal issue-the lawfulness and constitutionality of Obergefell-in state court, where there is some measure of judicial accountability, rather than in federal court,
  • allowed those concerned about marriage to have attorneys sharing their concern argue over the effect of Obergefell,
  • eliminated the risk that the attorney general would refuse to defend legislation,
  • eliminated the risk of the governor vetoing any nullification legislation or choosing not to “enforce” any such legislation.

Summary:

Pastors and other concerned citizens are fighting the issue of the legitimacy and effect of Obergefell in state court, not federal court, through two lawsuits. Until these lawsuits were filed, the continuing validity or interpretation of Tennessee’s statute authorizing the issuance of marriage licenses had never been at issue before any court, federal or state.

The point of the lawsuit is this: If Obergefell was a constitutional exercise of the judicial powers under the U.S. Constitution, then Tennessee’s marriage licensing statute is invalid, because the Court “held” that statutes like Tennessee’s were “invalid” and the only branch of government constitutionally authorized to replace or amend a state statute is the Tennessee General Assembly, which has not enacted any new marriage license law to replace the one that the Court said would be invalid if its constitutionality were ever litigated.

There is a reason the General Assembly has not acted. It, along with other governmental bodies, has a right, by law, to presume a statute is constitutional until a court of competent jurisdiction rules it unconstitutional. In fact, the attorney general has even opined that his office’s opinion that a statute is unconstitutional is not binding; to give his opinion such a binding effect would be an unconstitutional encroachment on the judiciary’s sole power to adjudicate the constitutionality of a statute. AG Opinion, No. 84-157.

Once all the litigation is concluded, the Legislature can then determine what action to take, depending on whether the courts elide the male and female requirement, interpret the words “male and female” to mean “male or female,” or hold the licensing statute invalid.