Thomas Jefferson once said, “The man who reads nothing at all is better educated than the man who reads nothing but newspapers.” After being on the inside of state politics for 23 years, I increasingly tend to agree with him. A story in The Tennessean this week is a case in point.
The story related to action taken Wednesday by the House Civil Justice Subcommittee on House Bill 892, dubbed the Tennessee Natural Marriage Defense Act. Thankfully, no other newspaper picked up the story because it so missed the whole point of what took place that those who didn’t read it are better off than those who did.
The heart of the debate centered on an amendment that rewrote the original bill. If you read the article, you would have no idea what the amendment was about.
The amendment is primarily directed at two things: directing state and local officials to obey the marriage license law that requires applicants to be a male and female until a final court order tells them otherwise, and making sure that the state protects them in court if they do.
The story never told you why the amendment was offered. It was because no court has ever ruled on how the U.S. Supreme Court’s same-sex “marriage” decision (Obergefell v. Hodges) applies to Tennessee’s male-female marriage license law.
Many would say, “So? The Court was very clear; laws restricting licenses only to males and females are invalid.” That’s true, but that’s also the point—no one, including our state attorney general, has thought to ask, “If that opinion renders our law invalid, then what is the law?”
This is where an opinion from the attorney general’s office comes in. His office has opined that office holders such as county clerks must obey a law until a court officially declares it unconstitutional.
This opinion makes perfect sense. If every county clerk could decide how to interpret the effect of Obergefell on our law, then, as I told the subcommittee, we would have chaos.
One clerk, following the attorney general’s opinion, could say that the law is still valid until a court rules it is invalid and might only issue licenses to male and female couples.
Another clerk could say there is no marriage license law because Obergefell invalidated it, and the Legislature hasn’t replaced it. And another clerk could decide the Obergefell decision itself somehow “amended” the law to authorize any two people to get a license.
Only a court can “judge” which of those views is correct, and no judge has done so.
So why aren’t county clerks doing what the attorney general said? Why aren’t they following the law until a court tells them to stop? Simple. They will get sued for not issuing a license to same-sex couples, and they will have to defend that lawsuit at the expense of local taxpayers. And that is where the amendment comes in.
The amendment protects all officials who will obey the law. It does so by allowing the attorney general to defend them and, if the attorney general declines, then the state will indemnify that official (and local taxpayers) from any legal fees he or she has to pay and from any court costs if they lose.
That amendment was adopted. Then the subcommittee delayed a vote on the bill, as amended, until next year.
The vote was delayed because two pending lawsuits that I am handling as an attorney (The Tennessean wrongly reported that I was a “party”) may resolve the question of what law, if any, still exists after Obergefell.
However, if over the next few months the Tennessee court system decides it does not want to hear those cases and refuses to determine what the effect of Obergefell was on our law, then we will come back to the bill. And if the bill is enacted, maybe some of our county clerks will muster the courage they need to obey the law and follow the attorney general’s advice to that effect.
If just one county clerk then decides to obey the law, a same-sex couple will sue him or her. But he or she will be defended in court by the state. And the courts will not be able to avoid making a decision in that case on what law, if any, still exists after Obergefell.
What happened in that subcommittee was a significant step toward resolving a huge, unanswered constitutional question left hanging by Obergefell.
If the bill has to be taken up again next year, then opponents will have to address the legal and constitutional question the amendment raises. The focus will not be on whether we should have same-sex “marriage,” but on whether we should uphold the rule of law. That will be a significant change in the nature of the debate.
And now to paraphrase Thomas Jefferson, you are better educated than the person who read the newspaper story.
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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