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Bermuda Considers Repeal of Same-Sex ‘Marriage’

The island nation of Bermuda is reconsidering its same-sex “marriage” law and instead is looking at offering same-sex couples domestic partnerships status with benefits. The nation legalized same-sex “marriage” through a court order in May, although the order did not provide benefits for same-sex couples. If Bermuda succeeds in reversing that law, it would be the first country in the world to return to the biblical definition of marriage: the union of one man and one woman. The House of Assembly has passed the Domestic Partnership Act, which now goes to the Bermuda Senate.

MP Wayne Furbert said, “I support it because at the end of the day it removes the right to same-sex ‘marriage’ and it tells the court that this Parliament will stand for what is right.” Sylvan Richards, shadow minister of planning, added, “It’s going to give individuals the rights they need and it’s going to keep marriage between a man and a woman, which was my goal.”

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Australian Senate Votes to Legalize Same-Sex ‘Marriage’

In a 43-12 vote, the Australian Senate passed a bill on Wednesday to legalize homosexual “marriage.”

This was bad news for conservatives. The Senate rejected attempts to allow business owners who provide wedding services or non-clergy authorized to solemnize weddings to opt-out of same-sex “marriages” based on their sincerely held religious beliefs. It also rejected a provision to allow parents to opt children out of class instruction that normalizes homosexuality.

The Australian House of Representatives could take action on the bill as early as next week, and conservatives are expected to attempt to include these religious liberty exceptions.

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signing a marriage certificate

Is Your County Clerk Acting Illegally?

A storm is brewing in Bradley County, Tenn., and it’s not over whether the sheriff there should be convicted of the various crimes for which he’s been indicted. It’s a lawsuit that puts on “trial” a question about whether the Bradley County Clerk’s Office has been acting illegally, and if so, then your county clerk may have been acting illegally, too. Most lawyers laughed and scoffed when FACT filed a lawsuit about this nearly two years ago. They may not be doing so now.

Background of the Bradley County Lawsuit

Many readers may recall that in February 2016, I filed a lawsuit through our organization’s Constitutional Government Defense Fund on behalf of a minister and a county commissioner living in Bradley County. One of their claims, as citizens, was that their right to vote for legislators who would not change our state’s marriage licensing laws was being infringed upon because their county clerk (and, indeed, all Tennessee’s county clerks) was issuing marriage licenses to same-sex couples when the licensing statute, which has never been changed by the Legislature or ruled on by a court, clearly said that licenses could only be issued to “male and female” applicants.

This week the judge who will be hearing arguments on the merits of that case on December 13th put down a ruling with potentially huge implications.

What Happened With the Marriage-Licensing Case

The ruling by the trial court was on a motion by more than 50 Tennessee legislators asking to intervene in the lawsuit to stop the county clerk from issuing marriage licenses to same-sex couples that our state’s statutes had never authorized her to issue. Their argument rested on the fact that our state Constitution expressly provides that only the Legislature can “prescribe” any duties and powers to a county clerk.

The question, therefore, was this: On the basis of what authority, then, were county clerks issuing marriage licenses to same-sex couples, since the Legislature had never passed a statute “prescribing” to them any duty or power to issue such a license?

This question was particularly compelling to the legislators since the United States Supreme Court had held that licensing laws like ours were “invalid.” How, they wondered, do you have authority to issue any license under a type of licensing statute that the Court said is constitutionally invalid and we’ve not enacted a statute to take its place?

In essence, the legislators wanted to protect their authority to prescribe the county clerk’s duties and stop the county clerks from assuming an authority that had not been prescribed to them. When officials do acts that they are not authorized to do, we lawyers call them “ultra vires” acts. Non-lawyers might simply call them illegal or unlawful.

What the Court Said

The trial court denied the legislators the right to intervene, but what it said in doing so is what’s important. The trial court said,

[Legislators] argue the clerk is committing an ultra vires act and that the current parties to the lawsuit cannot protect [their interest], . . . but [the complaint] contains allegations of ultra vires acts on the part of the Clerk and prays for relief of enjoining her from issuing marriage licenses. From that the [Legislators] assert that they are the proper party to make the ultra vires argument. The court disagrees and specifically finds that the plaintiffs are the proper party to make the ultra vires argument.

What It Means

In other words, the trial court was saying that the citizen plaintiffs have a legal right to argue that the county clerk has been acting illegally and unlawfully1 and, thus, the legislators don’t need to get involved at this point.

This does not mean the court will rule in the plaintiffs’ favor after the arguments on the 13th are fully evaluated. However, it does mean that the court recognizes that the scoffers were wrong—that there is an open constitutional question that a state court must decide, namely, what should be done with Obergefell’s holding that marriage licensing statutes like ours are invalid?

The answer to that question should be very interesting. Stay tuned.

NOTES
1. This is not to condemn all our county clerks or Bradley County’s clerk in particular. They just did what the state’s attorney general told them to do. But his advice, like that of any lawyer, might prove to have been wrong.


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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Majority of Australians Favor ‘Same-Sex’ Marriage, Survey Results Show

On November 15, 62 percent of Australia’s registered voters said yes to same-sex “marriage” on the non-binding, nationwide mail-in survey conducted by the Australian Bureau of Statistics.

While liberals touted it a victory for “love,” the Australian founder of Answers in Genesis, Ken Ham, said, “Australians didn’t vote ‘yes for love’ as the Prime Minister claims. They voted ‘yes’ for sin, ‘yes’ for darkness, ‘yes’ for man’s word over God’s Word, ‘yes’ for a perversion of the only true marriage that God invented—one man, for one woman.”

After the survey results were released, Prime Minister Malcolm Turnbull seemed intent to have same-sex “marriage” legalized by Christmas, but not without pushback from the conservative party, which is concerned about religious liberty exemptions for those in wedding businesses.

“If a ‘yes’ vote is returned,” said Lyle Shelton, a spokesman for Australia’s Coalition for Marriage, “we will do what we can to guard against restrictions on freedom of speech and freedom of religion, to defend parents’ rights, and to protect Australian kids from being exposed to radical LGBTIQ sex and gender education in the classrooms. We promise our supporters that no matter the result, we will continue to work to defend Australian families.”

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a tortoise and a hare

The Lawyer and the Layman: A Modern-Day ‘Tortoise and the Hare’ Tale

I couldn’t help thinking about Aesop’s The Tortoise and the Hare as I recently sat through a deposition in connection with a contest over who gets to make laws under our Constitution. It was fun to listen in on the conversation as the layman schooled the unwitting lawyer. Keep reading and you can “listen in,” too.

The contest is between the powers of the states and, in particular, the power of their legislative bodies to make law versus the powers of the United States Supreme Court. It is being played out in a lawsuit that our organization’s Constitutional Government Defense Fund filed in February 2016.

The “race” got started in earnest during the recent deposition of a county commissioner, one of the two people who filed a lawsuit challenging the Supreme Court’s authority to require our county clerks to issue marriage licenses to same-sex couples.

If you think the Supreme Court in Obergefell v. Hodges, decided in June 2015, authorized Tennessee’s county clerks to issue marriage licenses to same-sex couples, as do most law school graduates, the “hares” in this story, then you need to keep reading. You might learn something from the “tortoise” in this story, the “lowly” septuagenarian county commissioner whose formal education didn’t extend beyond high school.

To appreciate the exchange between the lawyer-hare and the county commissioner-tortoise, you need to know that the Obergefell Court articulated two holdings.

The holding the lawyers focus on is the one that said same-sex couples have a right to marry under the marriage licensing statutes of the states.

But the holding the lawyers, in their fawning servility to the Court, seem to overlook is Obergefell’s holding that licensing statutes are “invalid” if they only authorize the issuance of marriage licenses to opposite-sex couples. And Tennessee’s marriage licensing statutes do just that, along with the statutes in about 40 other states.

Now, here are actual key exchanges in the deposition, condensed for the sake of space:

Lawyer: Do you agree that you are bound by the decisions of the United States Supreme Court, even though we may disagree with them vehemently or not?

Commissioner: Well, I do to a certain point.

Lawyer: When do you think we should do something different from what the United States Supreme Court says we should do?

Commissioner: Well, first of all, the Supreme Court didn’t make the law; is that correct? They reviewed it.

Lawyer: Okay. And if you don’t obey the law, then have you violated your oath of office?

Commissioner: You have, but like I said, they don’t make law. They review it. . . . And our legislators make our laws for us.

Lawyer: And we follow those even if the Supreme Court—

Commissioner: We should follow the laws that our legislators make. And I don’t know of any law that the legislators have made except the fact that they’re working on this situation.

Lawyer: Have you tried to get them [legislators] to say we want you to issue—even though the Supreme Court has already said it, we want you to say that the clerk should issue marriage licenses to homosexuals.

Commissioner: We want the legislators to say you can or you can’t.

Lawyer: So we don’t have to rely on the Supreme Court already saying that?

Commissioner: Yeah. Right. We want the legislators. They’re the lawmakers. And we want—I want them to say if you can or you can’t.

What was the commissioner saying that the lawyer didn’t seem to understand? Simple: “You can’t get a license, Supreme Court, if you hold the license law is invalid. And only legislators can say what the new law is.”

And therein lies the power struggle. The Supreme Court can declare rights all day long, but until the Legislature enacts a new statute in place of the one the Supreme Court invalidated, our clerks are acting without legal authorization.

Obergefell did not and could not authorize our county clerks to do anything, because under the Tennessee Constitution, Article VII, Section 1, only the Legislature can “prescribe” a county clerk’s duties. No court can make nor has any court ever made a legislative body enact any particular law. It doesn’t have that power.

If you ask me, this county commissioner knows more about the Constitution, the law, and the separation of powers than most lawyers with their three years of specialized legal training.

If hares hadn’t put other hares in charge of deciding who wins this contest, I’d sure put my money on the tortoise.


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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