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Are Tennessee Officials Content to Ignore the Law?

It is becoming increasingly apparent to me that we have a number of state officials (non-legislators) and local elected officials who either don’t know the law or are content with ignoring it. An opinion from Attorney General Slatery proves my point.

I was recently preparing for oral arguments in a lawsuit I am handling on behalf of various ministers and residents of Williamson County against the Williamson County clerk. In the course of my preparations, I ran across an opinion from our state’s attorney general that proved the point I was going to try to make to the court.

The Background Context That Exposes the Lawlessness

To appreciate one of the points I was going to make in court, you need to understand what the lawsuit is about.

The lawsuit alleges that Tennessee’s marriage license law, which requires that applicants be a male and female, may be unconstitutional because of the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015. The Supreme Court “held” that laws like Tennessee’s were invalid, but despite what you may think based on reports by the media, that law was not part of the Supreme Court’s Obergefell decision.

In other words, no court has “officially” ruled on whether Obergefell invalidated our law. That probably seems like a technicality, but that’s where the attorney general’s opinion comes in.

The Attorney General Says, ‘Obey the Law’

One of the points I wanted to make in my oral argument was that until a court rules that our law was somehow “amended” by Obergefell, no court decision has ever authorized the county clerk to issue a license to anyone other than male and female applicants. Until then, my argument was that the county clerk had to obey the existing law and that by issuing licenses to same-sex couples, the clerk was acting illegally.

It turns out that my view of the law is the same as Attorney General Slatery’s!

In 1984, the attorney general was asked if elected officials such as county clerks still had to obey a state law even if the attorney general had issued an opinion to the effect that the courts would hold the law unconstitutional. This is important because I’m sure our attorney general would say that our marriage license law would be invalid if ever challenged in court.

Here is what the attorney general said:

[U]nder relevant constitutional principles, the public, individuals, and ministerial officers [like County Clerks] must presume a state statute to be constitutional until it is declared unconstitutional by a court of competent jurisdiction.

What the Attorney General’s Opinion Means

That means a county clerk has no legal authority to determine if our law is unconstitutional after Obergefell and certainly has no authority to determine if the effect of Obergefell was to judicially remove the language in the statute requiring applicants to be a male and female.

The attorney general’s opinion rightly concludes that only a court can interpret what effect Obergefell had on our marriage license law. Moreover, the attorney general essentially said that even if he tells the county clerks that Obergefell rewrote the law, that opinion is not a court’s opinion and the law should still be obeyed.

What This Means for Our Attorney General

After reading that attorney general’s opinion, I have a lot of questions. Here are two of them:

  • Why has our state attorney general not told the county clerks to obey the law until a court says otherwise? After all, that is the attorney general’s “official” opinion.
  • Why is the attorney general sitting out the lawsuit we’ve filed instead of joining us in asking the court what, if anything, is left of our marriage license law? Opposing our view of Obergefell seems better to me than being apathetic about the law being flat out ignored.

What This Means for All Our Elected Officials

But this question is the real kicker for me: Why hasn’t some state or local official brought their own legal action to have a court determine what the effect of Obergefell was on our law?

The only thing I can figure is that they either support same-sex “marriage,” or, more likely, being lawless is just easier for them. Apart from our little lawsuits, no one seems to care if they disregard the law.

I guess we’ll soon find out if even our judges care whether our elected officials obey the law.

Listen to the key exchange I had with the Court of Appeals about this point.


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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David Fowler on Understanding the TN ‘Marriage Lawsuits’

FRANKLIN, Tenn. (January 21, 2016) —Today, David Fowler, an attorney with the Constitutional Government Defense Fund, filed a lawsuit in the Chancery Court of Williamson County, Tenn., on behalf of a number of ministers and concerned citizens over purely legal, constitutional issues created by the United States Supreme Court’s decision on marriage June 26, 2015 in Obergefell v. Hodges.

The following statements can be attributed to Mr. Fowler:

“The legal question is really very straightforward: If Tennessee’s current marriage license law, passed in 1995, is unconstitutional, which is what the Obergefell Court actually held, then who passed the new law to replace the old one? Courts can’t pass laws, and the Legislature has not passed a new law since last June. So it stands to reason that there is no marriage licensure law in Tennessee, unless the Supreme Court now thinks, for the first time in history, that it has the power to enact a new law for a state.

“These courageous citizens have asked our state court system to “declare” what the law is after Obergefell. These ministers need to know if the marriage ceremonies they have performed or will be performing are actually of any legal effect. They are merely trying to protect the rights and interests of the couples who come to them thinking that they are getting married when maybe they are not.

“The lawsuit calls attention to the fact that if everyone continues to pretend that the Supreme Court can “pass” a law to replace an existing law that the Court rules invalid, then we will no longer be living under the rule of law but under pretend laws made by judges who pretend to be legislators.”

  • Read more about the lawsuit.
  • The condensed version of Mr. Fowler’s remarks at a press conference held today can be found at this link.
  • 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.

Media Contact: Laura Bagby, Director of Communications  |  Office Phone: 615-261-1338  |  Email: laura.bagby@factn.org

David Fowler’s Remarks at the Marriage Lawsuit Press Conference

FRANKLIN, Tenn. (January 21, 2016) —David Fowler, Esq., attorney for the Constitutional Government Defense Fund, made these remarks at a press conference about the marriage lawsuit:

“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 stands 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 the 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.”

Media Contact: Laura Bagby, Director of Communications  |  Office Phone: 615-261-1338  |  Email: laura.bagby@factn.org

Who Does Judge Roy Moore Think He Is?

The Chief Justice of Alabama’s Supreme Court, Roy Moore, issued an order this week that instructed probate judges, who issue marriage licenses in that state, to stop issuing same-sex “marriage” licenses until the state Supreme Court decides how to apply Obergefell v. Hodges to its state’s marriage license laws. Liberals howled! How can he do that? How can a state Supreme Court trump the U.S. Supreme Court? Well, as he did back in March, Justice Moore is schooling ignorant Americans on fundamental principles of constitutional law. Read on so you won’t be one of the ignorant masses.

The first thing that must be remembered is that each of the state officials and officials of the local government created by state law takes an oath to uphold the U.S. Constitution. That necessarily means these officials must try to figure out how to apply the U.S. Constitution to the laws that states have.

And the second thing that must be remembered is that, as a part of the dual sovereignty that federalism represents, state courts can decide how to interpret the U.S. Constitution and how decisions by the U.S. Supreme Court “interpreting” the U.S. Constitution apply to state laws.

The third thing that must be remembered is that each of the branches of the state and federal governments can come to different conclusions as to what the Constitution requires. This is called the “separation of powers.”

This constitutional principle is what prohibits one branch of government from telling the other branches what they must affirmatively do. That is why presidents and governors sometimes refuse to carry out a law that Congress and the state legislatures, respectively, enact. Those branches of government—the executive and the legislative—are separate.

A fourth thing that must be remembered is that state courts can come to their own conclusions as to what the U.S. Constitution requires or how a U.S. Supreme Court decision should be applied. This is called federalism. And if litigants don’t like the state court’s conclusion, the proper remedy is to appeal it to the U.S. Supreme Court.

So, how do these principles relate to Judge Moore’s order? Very simply, Justice Moore said his court has a case before it asking what effect Obergefell had on Alabama’s marriage license laws, and Justice Moore wants the probate judges to maintain the status quo until the court figures it out.

Now liberals would say, “What’s so hard to figure out? Just do what the Supreme Court said and let same-sex couples get married.” It figures that liberals would be that simplistic in their thinking.

Before going further, let me ask a question. Can a law be valid and invalid at the same time? Or let’s put it in constitutional jurisprudential terms, can a law be constitutional and unconstitutional at the same time?

Most sane folks would say, “No.” Actually U.S. Supreme Court Chief Justice John Marshall, whose decision in Marbury v. Madison articulated the principle of judicial review said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”1

So here is what the U.S. Supreme Court said in Obergefell:

“The state laws … are … held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and condition as opposite-sex couples.”

To the untrained legal ear, that sounds a little like saying your state marriage license law is “more or less constitutional.” Thankfully, it sounds the same way to the trained legal ear that is wiling to be intellectually honest.

But the Obergefell Court also said this:

“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”

Notice that both of these sentences represent the “holding” of the Obergefell court.

So, if a law can’t be valid and invalid at the same time or constitutional and unconstitutional at the same time, how does one “exercise” a “right to marry” under a law that is “invalid”?

Is there any wonder, then, that Justice Moore said in his order, “Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’”? How does a probate judge lawfully issue a license pursuant to an invalid law?

Liberals would say, “Because the Supreme Court said they should, that’s why!” To which Justice Moore and, to be honest, all state officials in every state should say, “And who is the U.S. Supreme Court to ‘commandeer’ the state government and purport to enact for a state a state law that the state has not enacted?”

Separation of powers prevents the judicial branch from enacting legislation, and federalism prevents the federal government, including the judicial branch, from dictating to a state what statutes it must affirmatively enact.

That is the issue at stake in Alabama (and actually should be everywhere), and it is a very grave and important constitutional issue. Most states, under the direction of their attorney generals, have given up on state sovereignty and have basically advised their state officials to allow the Supreme Court to commandeer their state legislatures. Our Founding Fathers would have never imagined that state officials would be so quick to let the federal government tell them what to do.

Thank you, Justice Moore, for showing us the constitutional principles many of us have forgotten and that we need to fight for.

__________________________

NOTES

  1. Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969), quoted by the U.S. Supreme Court in NFIB v. Sibelius (first Obamacare case) in 2013.

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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Kim Davis Shows Supreme Court Wears No Robes

Kentucky’s Kim Davis has disrobed the five members of our Supreme Court, exposing the lawlessness of its decision that state laws conforming to natural marriage were unconstitutional. Let’s hope our state legislatures don’t become complicit in the Court’s lawlessness.

Most news stories so far have focused on the religious liberty issue Ms. Davis raised when she said that she could not issue a marriage license to couples of the same sex because in doing so she would be violating the higher law of God which says marriage is only between a man and a woman.

What Law Is Ms. Davis Violating?

But Ms. Davis’ refusal to issue a license raises a very practical legal problem as well, namely, what law authorizes her to issue a license to two people of the same sex? Clearly, Ms. Davis has no inherent authority to decide who she can and cannot issue a marriage license to.

To understand the practical problem Ms. Davis’ refusal creates, we need to appreciate that there are two kinds of statutory laws, positive and negative. The first, “positive laws,” direct someone to do something. The second, “negative laws,” forbid someone from doing something. This limitation on the types of laws presents a problem for Supreme Court Justices who want to require someone to do something the law doesn’t authorize them to do.

For example, if the law requires a clerk to issue a marriage license to two people of the opposite sex, and the clerk refuses, then the Court, exercising judgment, can direct the clerk to follow the positive law.

And the opposite is also true. The law prohibits incestuous marriage. If a clerk begins to issue licenses to mothers and her children, the Court, exercising judgment, can direct the clerk to stop violating the negative law.

But in the marriage case, we have a positive law directing Ms. David to issue a marriage license to two people if they are of the opposite sex. The Supreme Court, exercising judgment, could direct her to issue those licenses if she refuses to follow the law. Likewise, the Supreme Court could direct her not to issue licenses to those in an incestuous relationship if she was violating that law.

But what law is there that the Court can direct her to follow or prohibit her from violating when it comes to same-sex couples? There isn’t one!1

Does the Supreme Court Judge the Law or Make the Law?

Some would say she has to comply with the Supreme Court’s order, but that’s the problem. A court, by definition, can only exercise what our Founding Fathers called “judgment.” It cannot exercise what they called “will,” by which they meant that it could not make law.

So, the Supreme Court has created a problem. The five black robed legislator-jurists did not say it was unconstitutional for a clerk to issue a marriage license to two people of the opposite sex. That law is still good. But the Court can’t “pass” a law that authorizes a clerk to issue licenses to two people of the same sex (or three or four people, for that matter—this issue will come up again!).

It seems to me that Kim Davis’ best legal argument is that there is no law for her to follow, to apply, that would authorize her to issue a license to two people of the same sex, and the legislature has not passed a new law authorizing her to do so.

So, when asked by the press by what authority she is refusing to issue marriage licenses to same-sex couples, she should ask her inquisitors by what statutory authority she is supposed to issue them licenses.

Will Legislators Do the Supreme Court’s Dirty Work?

That argument, as opposed to the religious liberty one, raises a very interesting legal question if the Kentucky legislature never passes a law that essentially codifies what the Supreme Court said. If legislatures do enact those laws, then they will have been suckered into doing for the Supreme Court that which it had no power to do—pass a law.

I have a feeling a showdown is coming if Ms. Davis holds the line and Kentucky (and hopefully Tennessee) doesn’t do the Supreme Court’s legislative work for them.

In sum, I thank you, Ms. Davis, for helping us see that the only truly lawless folks in America in relation to the same-sex marriage issue are Justices Kennedy, Ginsburg, Sotomayor, Kagan, and Breyer. You’ve helped us see that they are not wearing judicial robes, just suits like those worn by every other politician.

____________________
NOTES
1Some will say Ms. Davis is violating the “negative” law that banned same-sex “marriages,” but there was no law banning such marriages, like there is a law banning incestuous marriages. That is why you never heard me refer to our law defining marriage as a “ban” on anything. If our law was a “ban” on same-sex “marriage,” then it arguably was a ban on anything and everything someone might dream up and want to call a marriage, not just same-sex “marriages”! The press (and, unfortunately, many conservatives), in referring to our marriage law as a ban, helped create this confusion. Words matter!


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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

Invite David Fowler to speak at your event