The phrase “crazy like a fox” was popularized by humorist S.J. Perelman’s 1944 book by the same name. It describes a person who looks foolish but is actually very smart or clever. Last Friday, a lot of people may have thought Arkansas Circuit Court Judge Tim Fox looked foolish when he enjoined Arkansas from issuing birth certificates to anyone. At Wednesday’s oral argument on a case pending in Bradley County, Tennessee, the essential question became whether the Circuit Court judge in that case should do the same thing with respect to marriage licenses in Tennessee.
Reviewing the Arkansas Birth Certificate Case
On June 30, 2017, in a case talked about by few other than yours truly, Pavan v. Smith, the United States Supreme Court ruled that Arkansas’ general birth certificate law was invalid because it unconstitutionally allowed a husband to be presumed the father of his wife’s child and did not allow a woman to be presumed the mother of her wife’s child by artificial insemination.
Don’t read that too many times or your head will hurt trying to figure out how a woman could be presumed to be the mother of another woman’s child. But that’s what happens in a Justice Kennedy-controlled Supreme Court where everyone gets to live in the universe of meaning he’s created.
Anyway, after that decision, the Arkansas Supreme Court ordered the birth certificate law “stricken.” Then, it ordered the trial judge, Tim Fox, to “issue such injunctive relief as is necessary” to “ensure same sex couples are assured the same right” to a birth certificate as opposite-sex couples.
But Judge Fox had a problem—there is no law! How does the state issue or record birth certificates for anyone—let alone opposite-sex couples whom the law didn’t cover in the first place—if there is no longer a law at all governing who can get one?
In his order on Friday, Judge Fox said he was “hopeful that the executive branch may have the authority to issue . . . curative executive regulations,” but he left that issue to another day.
As a consequence of the judge’s order, the governor ordered the state to issue birth certificates to all married people. But how can he do that? He is using an executive order to replace a statute, not “cure” one. The separation of powers allows only the Legislature to replace an invalid statute with a new one.
Then the judge said that “if the executive branch does not have the authority” to fix the problem (which he doesn’t if we are all honest), then he said the state is “enjoined”. . . from issuing or recording any more birth certificates for anyone “until such time as the General Assembly can meet, in special or general session, and pass curative legislation.”
Will Tennessee’s Judge Do the Same?
What winds up happening in Arkansas remains to be seen, but this is the very same issue that I argued Wednesday in Bradley County Circuit Court. If our marriage license law violates the Supreme Court’s holding in Obergefell v. Hodges, in which it held that marriage statutes limiting licenses to a male and female were invalid, what is the law in Tennessee? Our statute says that marriage licenses can be issued only to “male and female contracting parties.” Seems to limit marriage licenses to males and females, doesn’t it?
On Wednesday, Tennessee’s attorney general conceded that our marriage licensing statute, if interpreted using the ordinary and natural meaning of the words “male and female contracting parties” would be invalid.
So, the attorney general essentially argued that the word “and” in that statutory phrase should be replaced with an “or” so that “male or female contracting parties” can be issued a license. But hold on; doing that is rewriting the words of a statute, something the courts can’t do, only the Legislature. It is that pesky separation of powers thing.
But, you say, didn’t the governor tell our county clerks to issue same-sex marriage licenses? Yes, but he has no more power to “cure” the problem in our marriage licensing statute than the governor of Arkansas has to “cure” its birth certificate statute.
What will the Tennessee judge do? I don’t know. But I hope he’s “crazy like a (Judge) Fox” and reminds us all, including our governor and attorney general, that only the Legislature can enact a statute to replace or “cure” one that is invalid.
It’s time state judges begin to restore the rule of law that the United State’s Supreme Court subverted in Obergefell and Pavan and the states quit pretending we have laws we don’t have.
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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