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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