Knoxville skyline with Sunsphere and wedding rings

My Judicial Hypothetical Proves Prophetic

While there are many fine constitutionally sound judges in our country, the judicial system, as a whole, is broken. Last April I predicted that judges who are not very careful in their application of Obergefell’s holdings to Tennessee’s marriage license law were going to open a can of worms. That can was recently ripped wide open in Knoxville.

The Background to the Knoxville Case

To understand what happened in Knoxville, let’s quickly summarize what Obergefell said. Using the power of judicial review, the Obergefell Court said laws that only authorize the issuance of a marriage license to a man and a woman are “invalid.” Not a hard concept to understand. The Obergefell Court also said that same-sex couples have a fundamental right to marry.

But only a few seconds of reflection on those last two statements leads one to the realization that the right to marry requires a statute. There must be a statute to spell out the terms and conditions upon which that marriage can be legalized.

But, you say, we have that statute. No, not if the Obergefell Court meant what it said when it said our basic license law was invalid.

And guess what? Neither Tennessee’s Legislature nor the legislatures of the other 40 states whose laws were ruled invalid have passed any replacement statute.

Weren’t we all taught that courts can’t pass statutes? Of course. It’s called the separation of powers. The power to enact statutes is constitutionally vested only in legislative bodies.

Taking the Court at its word, then, and applying the elementary principle taught in eighth-grade civics that courts can’t pass laws, we inexorably come to the conclusion that we have no marriage license law in Tennessee (or in about 40 other states).

Evidence the System Is Broken

But lawyers say to me, “David, your legal theory looks right, the logic is sound, but you know no court is going to rule that way. They are going to figure some way around your legal argument to validate the Supreme Court’s edict.”

They may be right. That’s why I say the system is broken. Lawyers are essentially admitting the Court is lawless.

My Prediction in April

But if the courts want to do that, then they are going to have to deal with what I told them in my brief last April would happen:

The substitution of a new [legislative] intent [regarding the definition of marriage] will then have ripple effects throughout the Tennessee Code relative to statutes involving marital status. The court will be creating for itself the nightmare of trying to figure out how a new judicially super-imposed intention defining marriage is to be applied consistent with the legislature’s intent in other statutes.

For example, T.C.A. § 68-3-306 provides that, “A child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.” Did the legislature intend this statute to apply where the marriage was between two women and the child would not have a mother and father? Based on the arguments the state made in Obergefell in support of its constitutional amendment regarding marriage, the legislative policy was to connect a child to a mother and father, but if that type of legislative intent is now unconstitutional, then maybe this statute, too, is unconstitutional. If so, will a future court supply a new legislative intention to that statute, too?

The Hypothetical Proves Prophetic

The very kind of case I predicted would surface actually surfaced in Knoxville a couple of weeks ago. A married lesbian couple sought a divorce. One of the women had conceived a child through artificial insemination. The other spouse not related to the child biologically sought to use the statute as a grounds for legal custody rights.

The Judge upheld the separation of powers between the judicial function and the legislative function and said the statute did not apply to insemination in the case of a lesbian marriage.

Here’s what he said:

When a statute is clear, courts simply apply the plain meaning without complicating the task. In re Baby, 447 S.W.3d 807, 818 (Tenn. 2014). This Court does not read the United States Supreme Court’s opinion in Obergefell 135 S. Ct. 2584 … to override this Court’s duty to interpret statutes in a manner that gives effect to their plain meaning.”

Assuming this decision is appealed, what will the appellate court do? Will it follow the law, as the trial judge did, and tell the disappointed litigants they need to seek a legislative remedy, or will it just perpetuate the lawlessness of the Supreme Court by going down the road of re-writing any number of marriage-related statutes to do what they were never intended to do?

This lawsuit, along with the two I’ve filed, has opened the judicial can of worms created by Obergefell. Just as earthworms break down organic matter, this can of worms might finally lead to the complete breakdown of the judiciary if courts blindly follow the lawless lead of the Supreme Court. If so, then we finally might see a move toward the judicial reform we so desperately need.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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