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.

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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