There were only two governmental groups that could have challenged the U.S. Supreme Court’s ruling in Obergefell v. Hodges. The first was the federal government and the second was the state government. Here is an explanation of why it was pointless, at the time of the Obergefell decision, to look to either of the two governmental bodies to make that challenge.
Any decision by either of those governmental bodies to challenge Obergefell had to take into account (i) the constitutional prerogatives of each of these governments and the constitutional prerogatives of each branch of government within those two governments and, just as importantly, (ii) the current “landscape” relative to how each of those branches of government will likely respond to an effort by the people to have them resist Obergefell.
Failure to take into account both of these considerations would have resulted in failure to effect change and protect the constitutional principles of federalism and separation of powers that are now at risk as a result of Obergefell.
What About the Federal Government?
There is little that could have been done at a state level to get the executive branch and the legislative branch of the federal government to do anything. For decades they have either been complicit in the usurpation of authority by the Supreme Court or abdicated their responsibilities in corralling the Court. Trying to get Congress or the executive branch to do anything substantively on an issue this controversial was a waste of time.
III. What About the State Government?
At the state government level, the challenge to Obergefell can only come through (i) some action by our governor or (ii) legislation passed by the Legislature, which at the time was a bill ostensibly purporting to “nullify” Obergefell.
The landscape at the time. Tennessee’s current governor, on the advice of our state’s attorney general, believed the state must issue same-sex “marriage” licenses, which also meant that he believed that same-sex “marriages” should be recognized for the purpose of all other state laws (e.g. tax laws, state employee benefits, etc.) the executive branch administers.
What that meant. The foregoing meant that if the Legislature had passed a new law back in 2016 requiring all elected officials to disregard Obergefell and treat Obergefell as a nullity for all purposes of state law, then the governor, exercising his prerogatives under the constitutional doctrine of the separation of powers, could have and would have disregarded that law. (This same analysis applies to all the other constitutional officers; see III. B.b.3.)
This meant that the Legislature’s only remedy would have been to impeach the governor (and it would have had to impeach all future governors who also may have refused to enforce the state law), but, under the state Constitution, a difference of opinion regarding the effect of a U.S. Supreme Court opinion on state law may not be an impeachable offense.
Failure of the Legislature to have impeached the governor would have meant Tennessee would have had a law that was largely meaningless unless county clerks had refused to issue marriage licenses to same-sex couples, which none have done so far, notwithstanding that two have been sued and those lawsuits have raised the unconstitutionality of their actions in issuing licenses to same-sex couples.
The State Legislature
The landscape at that time. Tennessee’s Legislature may have had the political will to pass a law in 2016 to the effect that Obergefell would have been considered a nullity under state law. However, there were several problems with that strategy.
What that meant. Because there would have been no political will to impeach the governor, such a law would have been ignored. Furthermore, the law would have undoubtedly resulted in a lawsuit in federal court asking that court to declare any new law unconstitutional under Obergefell. The attorney general, pursuant to that office’s prerogatives under the doctrine of separation of powers, would have had the right to refuse to defend the law, which is likely inasmuch as he had already advised the governor and all our state’s county clerks to issue licenses to same-sex couples. If the attorney general had declined to defend the law, then the speaker of the House and Senate would have had to agree to hire outside counsel to defend the law. Given their general unwillingness to oppose the governor and given their likely reliance on the attorney general’s analysis of Obergefell’s “requirements,” them both agreeing to defend a “nullification” bill was highly unlikely.
Assuming the law would have been defended by someone, the new law would not have put any new issue before the federal district court and 6th Circuit Court of Appeals. Thus, there would not have been any new legal/constitutional issue in front of those courts upon which to decide a legal challenge to the new law. This increased the likelihood the courts would have applied Obergefell to strike down any new state law. Re-litigation of the very same issue that had already been decided by the U.S. Supreme Court could have taken as little as six to eight months, which would have been a problem for this reason: Unless there had been a new justice on the U.S. Supreme Court in place of one of the five in the Obergefell majority, then the U.S. Supreme Court was not likely to hear an appeal from the 6th Circuit. Of course, there has been no change in the composition of the pro-Obergefell faction of the U.S. Supreme Court.
Because of the separation of powers, each of the officials in our state whose offices are created by the state Constitution have the prerogative to decide whether the new state law is unconstitutional and, therefore, disregard it. This includes the state’s treasurer, comptroller, and secretary of state; and each of the county officers: the county executive, sheriff, trustee, register, county clerk, and assessor of property.
This means that the Legislature would have had to have impeached the treasurer, comptroller, and secretary of state, if they, like the governor, had disregarded the new law. And the Legislature would have also had to find a way to remove from office all those local officials who might have disregarded the new state law. Otherwise, the law would have become meaningless. However, the Legislature has no direct power under current statutory law to oust local officials so it would have also been necessary for the Legislature to amend the ouster law to allow it to remove local officials who disregarded the new law.
The bottom line is that enforcement of a state “nullification” law would have presented numerous practical hurdles.