This information provided by David Fowler, President of The Family Action Council of Tennessee, Inc.
There are only two governmental entities that can challenge the Obergefell ruling, (i) the federal government and (ii) the state government.
I. Practical Considerations
Any decision to challenge Obergefell must take into account (i) the constitutional prerogatives of each of these governments and the constitutional prerogatives of each branch of government within those two governments and, just as importantly, (ii) the current “landscape” relative to how each of those branches of government will likely respond to an effort to resist Obergefell.
Failure to take into account both of these considerations will result in failure to effect change and protect the constitutional principles of federalism and separation of powers that are now at risk in future matters important to the state and its citizens as a result of Obergefell.
II. What About the Federal Government?
There is little that we can do on a state level to get the executive branch and the legislative branch of the federal government to do anything. For decades they have either been complicit in the usurpation of authority by the Supreme Court or abdicated their responsibilities in corralling the Court.
The Executive Branch
- The Current Landscape. President Obama supports the Obergefell decision
and, in fact, U.S. attorneys threatened to prosecute Alabama probate judges (who issue marriage license in Alabama) after Alabama State Supreme Court Justice Roy Moore issued an order directing them not to issue same-sex licenses until a lawsuit, lawfully and constitutionally filed in Alabama state courts over the effect of Obergefell on Alabama law, was resolved.
- What this means. This means that, if Tennessee elected officials, like our County Clerks, refuse to issue same-sex licenses, then the executive branch of the federal government may take action. In the current situation, it is the clattering of swords by U.S. attorneys. While I think the current legal and constitutional setting is far different from Brown v. Board of Education (abolishing segregation statutes), an historical example of this is when President Eisenhower called in federal troops to make sure that black students could attend previous all-white schools. And the current President may attempt to direct the federal Centers for Medicare and Medicaid Services to discontinue distribution of federal matching funds to TennCare if individuals who would otherwise be eligible for benefits by virtue of a same-sex “marriage” are being denied benefits. The President has taken such actions with respect to state efforts to discontinue contractual relationships under Medicaid with Planned Parenthood organizations. If the federal government cut off all funding for TennCare, then, if Tennessee continues in the Medicaid program, it would have to make up approximately $6.5 billion in federal funds lost. For the reasons set forth in II.2, I would not expect Congress to do anything to resist such actions by the President. The preceding analysis might be different if we had a different president.
- The Current Landscape. Congress has no political will to address the issue
unless made to do so.
- What this means. This means that the only thing the state government can do is pass resolutions (repeatedly if necessary) to urge Congress and the President to resist Obergefell. It also means that citizens must run against members of Congress who refuse to do anything to reign in the Supreme Court and not vote for those members of Congress who refuse to do anything.
III. What About the State Government?
At the state level, the challenge to Obergefell can only come through (i) some action by our Governor, (ii) legislation passed by the legislature, or (iii) a lawsuit filed in our state courts.
- The Current Landscape. Tennessee’s current Governor, on the advice of our state’s Attorney General, has already said that he believes the state must issue same-sex “marriage” licenses, which also means that he believes that same-sex “marriages” should be recognized for the purpose of all other state laws (e.g. tax laws, state employee benefits, etc.) the executive branch administers.
- What this means. This means that if the legislature passes a law that requires all elected officials to disregard Obergefell and treat same-sex “marriages” as a nullity for all purposes of state law, then the Governor (and future governors), exercising his prerogatives under the constitutional doctrine of the separation of powers, can disregard that law (this same analysis applies to all the other constitutional officers—see The State Legislature, what this means, 2.
This means that the legislature’s only remedy would be to try to impeach the Governor (and they’d have to impeach all future governors who also refuse to enforce the state law, but perhaps future governors will run on an “enforcement-of-state-marriage-law” platform), but, under the state constitution, a difference of opinion regarding the constitutionality of a state law may not be an impeachable offense. The Tennessee Constitution says, “The governor . . . shall be liable to impeachment, whenever [he] may, in the opinion of the House of Representatives, commit any crime in [his] official capacity which may require disqualification.” Whether exercising prerogatives under the separation of powers is a “crime,” I don’t know.
Failure of the legislature to impeach will mean we have a law that is largely meaningless unless County Clerks (see discussion of Clerks under the next section) refuse to issue marriage licenses to same-sex couples, which none have done so far.
The State Legislature
- The Current Landscape. Tennessee’s legislature may have the political will to
pass a law to the effect that same-sex marriages are to be considered a nullity under state law. However, because of the “current landscape” a number of very practical considerations will come into play.
- What this means. This means several things.
- 1. The new state law will undoubtedly result in a lawsuit in federal court asking
that court to declare any new law unconstitutional under Obergefell. We do not have friendly judges in that court, which ruled prior to Obergefell, that male-female marriage laws violated the U.S. Constitution.
- (i) The Attorney General, pursuant to that office’s prerogatives under the
doctrine of separation of powers, has the right to refuse to defend the law, which is likely inasmuch as his office has already advised the Governor and all our state’s County Clerks to comply with Obergefell. If the Attorney General does decline to defend the law, then the only alternative is for the Speaker of the House and Senate to agree to hire outside counsel to defend the law. Whether they would agree to do that is unknown at this time.
- (ii) Assuming the law is defended, the federal district court and Sixth Circuit Court of Appeals will have no new legal/constitutional issue in front of them upon which to decide the challenge to the new law, and this increases the likelihood they will apply Obergefell to strike down any new state law. Consequently, I understand that his judicial process could take as little as six to eight months. Unless, at that time, there is a new Justice on the U.S. Supreme Court in place of one of the five in the Obergefell majority, then the Supreme Court will not likely hear an appeal from the Sixth Circuit.
- (i) The Attorney General, pursuant to that office’s prerogatives under the
- 2. Because of the separation of powers, each of the officials in our state whose
offices are created by the state Constitution have the prerogative to decide whether the new state law is unconstitutional and therefore, disregard it. This includes: the Governor and the state’s Treasurer, Comptroller, and Secretary of State; and each of the county officers, the county executive, sheriff, trustee, register, county clerk, and assessor of property.
This means that the legislature will need to find some way to remove from office all those officials who disregard the new state law or the law will become meaningless. As previously stated, the Governor may not be subject to impeachment but, for the legislature to remove local elected officials, the legislature will need to amend the state law on ouster.
As currently written, only certain officials, in their discretion, have the power to file ouster petitions in state court, and the only fallback, if these officials do not take such action, is for ten citizens in a county to file an ouster petition in state court. The legislature has no direct power under current statutory law to oust local officials. Whether ten citizens will petition to oust a Clerk is unknown, but it has not happened so far.
- 3. The bottom line is that enforcement of any new state law presents numerous
The State Courts
As we see being played out in Alabama’s Supreme Court, Tennessee Courts have the constitutional right to determine how Obergefell applies to Tennessee’s law and, in that regard, remember that Obergefell did not rule directly on the laws governing the solemnization of marriages in
Tennessee of Tennessee residents. (It ruled only on marriages performed outside of Tennessee between persons not then residents of Tennessee.) Obergefell “held” that state laws limiting marriage to a man and a woman were “invalid.” So it is legitimate for a state court to determine whether, in the absence of any new replacement statute, Tennessee even has a valid marriage license law since Obergefell. This is a question that could be raised in a declaratory judgment action if filed in state court by appropriate plaintiffs with standing to bring such an action.
- The Current Landscape. Some judges in Tennessee may have the courage to hold that (i) if Obergefell was a decision within the scope of the federal judiciary’s powers, then when it said male-female marriage laws were invalid, then our marriage laws should be treated as invalid, meaning no one has been granted a valid license to marry since the Obergefell decision, or (ii) the Obergefell mandate that the state issue same-sex licenses was outside the scope of the federal judiciary’s powers and thus void.
- What this means. This means a couple of things.
- The state judges, unlike a federal judge, can be held accountable in the next election (particularly trial judges who have contested direct elections) for whatever decision he or she reaches. Furthermore, under section 6 of Article VI of the state Constitution, the legislature can remove State judges upon a vote of two-thirds of the members of each house. Unlike ouster regarding local officials, the state Constitution gives the legislature direct power to remove state judges and, unlike impeachment relative to the Governor, it is not necessary that a judge commit a crime.
In this case the legislative argument for removal might proceed on the grounds that the state court justices either (i) violated the separation of powers by ordering the state legislature to pass a law or (ii) effectively chose to allow the U.S. Supreme Court to violate the separation of powers by not letting the Supreme Court enforce its own unconstitutional orders. Whether this sets a precedent the legislature thinks worth setting under these particular circumstances is a policy and political decision.
- If the state Supreme Court, exercising its powers under the state and federal
Constitutions, rules that Obergefell struck down our marriage license laws or rules that Obergefell’s mandate that the licenses not authorized by state law be issued anyway was an invalid exercise of judicial power (either way), then a decision by a federal district court or the Sixth Circuit cannot trump that decision. This is because of the dual sovereignty that exists under federalism reflected in our U.S. Constitution and because the U.S. Supreme Court has not previously ruled on the constitutionality of Tennessee’s license laws for in-state marriages between state residents. (Tanco v. Haslam, the Tennessee case before the U.S. Supreme Court, only ruled on Tennessee’s law regarding state recognition of marriages performed out of state by persons not then residents of Tennessee.) The state Supreme Court’s decision would be the highest court decision on this issue.
This result would almost force the U.S. Supreme Court to take up an appeal of the state court’s decision, assuming the County even appealed. And this would be the result even if there are no new Justices on the U.S. Supreme Court, because, if the U.S. Supreme Court does not hear the appeal, then state officials would be constitutionally permitted to deny validity to same-sex “marriages” performed in Tennessee based on an order from the highest court in our state.
Again, this result would be legally justified because Obergefell did not rule on the constitutionality of Tennessee’s marriage laws relative to in-state marriages. And, again, this means that our state Supreme Court’s decision would be the highest decision of any court on the constitutionality of those particular laws. However, whether the state would choose to assert this legal position is a policy and political decision.
When before the U.S. Supreme Court, the attorney for the state court plaintiffs (which would not be the state Attorney General, since the declaratory judgment action would not be brought by the state) would be able to argue that Obergefell should be overruled.
- If the Tennessee courts rule that Obergefell’s constitutional analysis compels a
judicial conclusion that our marriage license law is invalid, any couple desiring to have a state licensed marriage could sue the state, but the argument would have to be nothing short of a request the judicial branch make the state legislative body pass a law. This raises a clear separation of powers issues—“Can a court in the judicial branch of government compel a state legislative body to pass a law?” If the lawsuit is brought in federal court, it also raises a clear question of federalism—“Can a federal court essentially ‘commandeer’ a state legislative body when the U.S. Supreme Court has ruled in the past that Congress cannot do so because of federalism?”
- There is nothing the Governor, the legislature, or the federal courts can do to
stop the state lawsuit from running its course and the lawsuit is not dependent on the Attorney General to prosecute.