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Didn’t the U.S. Supreme Court already decide that our marriage license law was invalid?
No. It ruled that similar laws in Michigan and Kentucky were invalid, but that part of the Court’s decision only bound those two states. It is “fair game” for a Tennessee court to determine how the Obergefell decision should be applied to Tennessee’s in-state marriage law. Certainly, Obergefell would be precedent for the proposition that our law would be invalid, but that is not the end of the issue.
Admittedly, the Obergefell Court said “state laws . . . are . . . held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” But the natural question raised by this statement is this: How can a law be constitutional “to an extent”? Former Chief Justice John Marshall, who articulated the “power of judicial review” in Marbury v. Madison, said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” In other words, our marriage licensing statute is constitutional or unconstitutional, valid or invalid.
However, if Tennessee’s licensing statute is invalid, that does not mean that the Obergefell Court, as a part of the federal judicial branch, had the power to “enact” a new statute to replace the ones it said were or would be “invalid.” Enacting laws is a power federal courts are forbidden from exercising by virtue of the constitutional separation of powers, and when it comes to enacting state laws, it is also a power they cannot exercise without violating the constitutional doctrine of federalism and the Tenth Amendment.
Furthermore, a right to a marriage license is the very epitome of a kind of right that is what courts call non-self-executing. In other words, a right to a license of any kind requires the existence of a statute authorizing its issuance. If licensing statutes like Tennessee’s are “invalid,” under what statutory authority, then, can a county clerk issue a license if the statute authorizing its issuance is invalid? The correct answer is, “None.”
Effectively, all the Obergefell Court said was that if states license marriages, then their statute must allow a license to be issued regardless of the sex of the parties. But that does not mean that the “invalid” laws were replaced by the Court.
Aren’t you saying that a state court decision can "nullify" or "disregard" a U.S. Supreme Court decision?
No. The U.S. Supreme Court only decides issues between the parties and only the issues before the Court in a particular case. The Tennessee case that was part of the U.S. Supreme Court’s decision in Obergefell was Tanco v. Haslam, and the only issue in that case was whether Tennessee must recognize same-sex “marriages” between persons that were then living in another state. As a strict legal matter, then, that means that the U.S. Supreme Court did not rule on the validity of Tennessee’s statutes governing the issuance of licenses to in-state residents. While Obergefell is binding authority in the lawsuit pending over the validity of Tennessee’s marriage license law in view of Obergefell, it is appropriate and constitutional for a state court to determine how a U.S. Supreme Court decision involving another state’s law applies to its state law. State courts do that all the time. When our state courts rule on the pending lawsuits, it would be the first decision by any court with respect to Tennessee’s marriage licensing statute.
I know the statute says that an application for a marriage license must include the name of the "male and female contracting parties," but won’t the state court just say the U.S. Supreme Court struck the words "male and female" and the statute should continue in full force but just without the "male and female" requirement?
It shouldn’t do that for a number of reasons.
Whether words that make a statute unconstitutional can simply be disregarded so that what’s left of the statute can still be enforced is called “elision.” Obergefell did not even discuss the elision of language in the marriage licensing statutes that were before it, and for good reason. It has held that when a portion of a state statute violates the U.S. Constitution, the question of “severability is of course a matter of state law.” Leavitt v. Jane L, 518 U.S. 137, 139, 116 S. Ct. 2068, 2069 (1996) (emphasis added). See also Dorchy v. Kansas, 264 U.S. 286, 290, 44 S. Ct. 323, 325 (1924) (Stating that “[t]he task of determining the intention of the state legislature in this respect, like the usual function of interpreting a state statute, rests primarily upon the state court. Its decision as to the severability of a provision is conclusive upon this Court.” (emphasis added)). So the Obergefell Court could not have held that states must elide any “male and female” requirement.
As to what our state court might do, in 2015, the Tennessee Supreme Court, in State v. Crank, said, “[W]hen a conclusion can be reached that the legislature would have enacted the act in question with the unconstitutional portion omitted, then elision of the unconstitutional portion is appropriate.”
It is impossible for a Tennessee judge to say with any integrity that when the Legislature enacted the law in question in 1995 that it “would have enacted” it anyway without the words “male and female,” because sodomy was still a crime. Moreover, the very same Legislature affirmed that it only meant man and woman marriage, because it passed the state’s Defense of Marriage Act the very next year!
Finally, the people amended their state Constitution, in Article XI, Section 18, to restrict the power and jurisdiction of the court to uphold the statute without the “male and female” requirement. It provides, “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee.”
If the State can ignore the Obergefell ruling, then why couldn‘t the states have ignored the Court’s ruling in Brown v. Board of Education? Isn’t that a case in which the Court told the states what laws they must have?
No. The two types of cases are completely different. Brown is not a case in which the U.S. Supreme Court affirmatively “passed” an integration law for the states. All Brown did was strike down a segregation statute, not the state’s entire law creating a public school system. Therefore, all Brown stands for is the proposition that if a state is going to provide a government-funded public school system, it must be open equally to all students. But in Obergefell, the Court didn’t strike down a statute on the periphery of the marriage issue, but the very statutes that authorize the issuance of the license itself; its decision was more like what would have happened if the Court in Brown had struck down the very statutes creating the public school system, not just the one statute requiring segregation
In other words, Brown struck down only the statute segregating schools, but the Court did not have to “pass” and did not “pass” a new law “creating” integrated schools, nor did it even require states to have public school systems. Once the segregation law was struck down, integration was not a matter of a new law being needed, but of how to go about integration in an orderly fashion. Brown did not hold that federal courts could pass laws.
What about Loving v. Virginia? Isn’t this the same thing except it was about race and this is about sexual orientation?
No. Obergefell is not like Loving because the Loving Court did not purport to enact a new marriage law in Virginia; it only struck down a penal law related to mixed-race marriages. Obergefell, however, said the basic licensing statutes were invalid if the male-female requirement is in a state’s licensing statute, as is the case in Tennessee.
There is nothing in the Loving decision that would have prevented the Virginia Legislature from repealing its marriage licensing laws and allowing for only common law marriages; however, that would not have served the racist purposes behind Virginia’s law, because, at common law, race was not an element of a common law marriage.
In addition, Loving did not undermine the fundamental reasons underlying the state’s interest in marriage but only “undermined” the state’s racist attitudes. Obergefell undermines the state’s fundamental interest in marriage—the value of children being raised by their biological mother and father—and substitutes the Court’s adult-centric “interest” in marriage. This may or may not be a better public policy reason for marriage laws, but public policy judgments are, by virtue of the separation of powers, committed to the legislative branch of government. Thus, Obergefell is different because it fundamentally transforms the nature of marriage and Loving did not.